CONSTITUTIONAL LAW OUTLINE FALL 2012

Professor Strossen

Introduction

Government power (and limits on that power) and individual liberty (and limits on that freedom)
Between 1994 and 2005, S. Ct. personnel didnt change (same 9 justices), and the Court decided many
controversial cases by 5-4 votes with Justice OConnor as the swing vote.
In the wake of J. OConnors retirement and her replacement of J. Alito, the Court already has
overturned important constitutional law precedents, usually by 5-4 margins. J. Alito has voted
differently from J. OConnor on a number of hot-button issues. Court is now in a period of transition
a number of key constitutional law doctrines are unstable and likely to be reversed/revised.
Critically important to become familiar with current majority view and plausible alternative
perspectives!
The Constitution also contains many unambiguous provisions. These clear provisions do not generate
constitutional law judicial decisions interpreting the Constitution.
Never a single, permanent right answer to constitutional law questions! Understand and articulate
all plausible constitutional law (as opposed to public policy) perspectives on issues. Be familiar with
considerations that weigh in favor of each majority, dissenting, and concurring opinion.
There is no linear way to address a constitutional law issue.
Grapple directly with the primary sources of con law the Constitution and Supreme Courts key
precedents interpreting the issue in your analysis.
S. Ct. typically functions as appellate court, but it also has original jurisdiction of the lawsuit.
S.Ct. should feel less bound to reaffirm constitutional decisions and precedent than other cases
because it is much harder to make Amendments to the Constitution than it is to change other laws. It
is the Supreme law of the land and much more important to interpret properly. Times change!!
Every act of govt involves at least 2 branches of govt.
Common Themes.
o Judicial leaning political leaning: labels dont always play out in expected ways in S.Ct.
o Judicial activism v. judicial independence: should Marbury be applied?
o Judicial Self Restraint
Principles of avoidance: reaching constitutional questions only when necessary.
o Formal v. Functional approaches to Constitution. Erecting formalistic obstacles v. respecting
factual realities.
OUTCOME DETERMINATIVE! Any court that analyzes from a formal approach is
going to find that it falls short. Why? Any that measure that is challenged as
unconstitutional by DEFINITION does not comply with the Constitution!
Courts separation of power/executive power rulings based on formal/function
approach
FORMAL measures struck down: Clinton v. NY, Free Enterprise Fund, Chadha
FUNCTIONAL: Mistretta v. US, Morrison v. Olson, Whitman v. American Trucking
o Facial Challenges v. As-applied Challenges. Law is unconstitutional on its face v. how law is
applied to a particular set of facts
o Public Policy views v. Constitutional Law conclusions
o Constitutional minimization: deciding cases in the most narrow way possible, on specific facts.
Court decisions are indecisive because of the judicial practice of dealing with the largest
questions in the most narrow way. J. Jackson in Youngstown
o Procedural v. substantive Due Process. Right to notice, etc. v. what govt may DO (if justified)
o Particular Facts v. Underlying Themes! (Michael H)
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The Federal Judicial Power

I.

Overview of the Constitution.

II.

Under the Articles of Confederation, the natl govt regulated states and states regulated citizens.
Constitution has seven articles and 27 amendments.
Three ways in which the U.S. Constitution distributes power along several distinct axes:
A. FEDERALISM. Primary purpose is to establish the relationship between GOVERNMENTS.
DUAL SOVEREIGNTY: the Constitution attempts to balance power between the central
government and the state governments. How has this balance changed throughout
history and with amendments to the original Constitution? E.g., civil war, 1937 shift in
power from state to natl govt, early 1990s revival of federalism. Unsure now if we are in
era of enforced federal limitations or post-New Deal era of broad federalist power.
B. SEPARATION OF POWERS. Purpose of not centralizing too much power in a particular
BRANCH of government. The Constitution allocates power among the three branches
(legislative, executive, judicial) so that not one person or branch becomes too dangerous
or tyrannous. How has this balance (and judicial interpretations of this balance)
changed over the course of American history? E.g., fed. Govts expansion since FDRs New
Deal in 1930s
C. INDIVIDUAL RIGHTS. Purpose of not allowing the government to oppress the PEOPLE.
The Constitution establishes the relationship between the government and the people,
and protects a variety of individual rights. What is the distinction between liberty
(identify areas in which legislatures are forbidden from governing) and equality (the
manner by which the legislatures govern)? How has the balance of power between the
govt and the people changed throughout history? E.g., 1960s era when S.Ct. was led by
C.J. Warren and comprised of majority of justices deeply committed to individual rights?
*Almost 60% of amendments have to do with expanding individual rights (except
Prohibition Amendment, which was repealed)
Constitutional law is focused on the question of judicial authority, which arises because in each
S.Ct. case, the Court renders a law constitutional or unconstitutional.
The Courts ability to review the constitutionality of legislation is called the power of judicial
review.
The Courts ability to have the final word on the constitutionality of a legislation is called the
power of judicial supremacy.
Counter-majoritarian difficulty: conundrum that in enforcing the Constitution, non-elected
judges are acting against the desires of the majority of people who have enacted the laws
deemed unconstitutional.
o Responses: judiciary is the least dangerous branch of govt and controls neither the
purse or the sword; judiciary can only decide cases or controversies (art. III) brought
to it by litigants seeking judicial intervention; judiciary is expected to issue a written
decision explaining its reasoning which will be scrutinized by the people.

The Authority for Judicial Review

The S.Ct.s role is to be the ultimate interpreter of the Constitution, with power to strike down
actions by other govt bodies or officials as unconstitutional. The Constitution is silent on
judicial review power, and Framers intent did not contribute either.
Marbury v. Madison (1803): President Jefferson's Secretary of State, Madison (D) refused to
deliver a commission granted to Marbury (P) by former President Adams. (Arose from larger
political battle between Federalists & Republicans.) Marshall signed commission! H: The S.Ct. has
the power, implied from Article VI, 2 of the Constitution, to review acts of Congress and if they
are found repugnant to the Constitution, to declare them void.
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III.

REASONING (Marshall): Opinion UNDERSTATES the power of judicial review; does not even list
the question leading to central holding. Statute gave S.Ct. power to do something specific, but
S.Ct. DECLINES that power. Marbury has a right to the commission, and the law grants him a
remedy but does not grant relief. The S.Ct. does not have power to issue writs of mandamus. It is
emphatically the province and duty of the judicial department to say what the law is. By
striking down this statute (Section 13 of the Judiciary Act), they are exercise an even more
sweeping power. The Republicans won the battle but lost the war.
In addition to establishing the authority for judicial review of legislative acts, Marbury also creates
the authority for judicial review of executive actions. There is a distinction between areas in
which there are individual rights (govt duties) and those in which the executive branch has
discretion how to act. Only the political process is the check/remedy on the executive branch in
political/discretionary acts!
Marbury is involved in any decision that challenges the constitutionality of anything! It applies to
all courts even lower federal courts can strike down any act of Congress.
Even if the Constitution is regulatory (as opposed to a rhetorical statement), the Court should
decide if a statute is unconstitutional. Marshalls reasons (and counterarguments):
A. Constitution is written. (Political? Strong textual expressio unius argument list
does not include judicial review power.)
B. Those who apply the Constitution must determine its validity. (Not necessary to
applying the Constitution)
C. Arising under jurisdiction. (But can they strike down a STATUTE, not a case?)
D. Judicial Oath. (Circular argument. Every elected official takes this oath.)
E. Supremacy Clause. (What does this have to do with it? Invoking general federal
power.)
Comparisons to Healthcare decision. Opinion merely held the ACA as permissible, but C.J. Roberts
clearly communicated that the Obama administrations principle defense of the Act a regulation
of interstate commerce amounted to a regulatory overreach. He upheld the law on the
NARROWEST grounds possible (doing the least damage to Constitution) while wrapping the court
in bipartisanship.

Limits on the Federal Judicial Power

Judicial power to say what the law is gives unelected federal judges great authority. There are
three primary limits to judicial authority.
Interpretative Limits. How the Constitution should be interpreted. Some approaches seek to
greatly narrow the judicial power, while others accord judges broad latitude in deciding the
meaning of the Constitution. There Is no agreement among justices as to the appropriate method
of constitutional interpretation, yet the resolution of every issue of con law turns on this question.
o Two theories.
A. ORIGINALISTS argue that the Court is justified in protecting constitutional rights
only if they are clearly stated in the text or clearly implicit in the text (intended by
the Framers). This approach seeks to constrain courts in interpretation.
B. NON-ORIGINALISTS argue that it is desirable for the Court to have substantial
discretion in determining the meaning of the Constitution, and that it is important
for the Constitution to evolve by interpretation and not only by amendment. This
approach seeks to go enforce norms that cannot be discovered within the four
corners of the document.
o There are various interpretative methodologies for applying the clauses of the
Constitution to specific cases.
A. The TEXT of the Constitution is a starting point. (But can be quite general e.g.,
due process and equal protection.)
B. Looking at the HISTORY of the Clause. Where did it come from? Why is it there?
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C. Looking at the PURPOSE of the Clause. What did the Framers intend?
D. Looking at a broad clause in the context of the overall STRUCTURE of the
Constitution.
E. Looking at a clause in light of all of the PRECEDENTS interpreting that clause.
F. Looking at the VALUES the clause embodies.
*Note: Different interpretative methodologies often yield different outcomes.
o District of Columbia v. Heller (2008): The District refused Hellers application to
register a handgun he wished keep in his home. H: The D.C. prohibition on the
possession of usable handguns in the home violated the Second Amendment to the
Constitution.
REASONING (Scalia): The total ban on handgun possession in the home amounts to a
prohibition on an entire class of arms that Americans overwhelmingly choose for the
lawful purpose of self-defense. Just as the First Amendment protects modern forms
of communications, the Fourth Amendment applies to modern forms of search, the
Second Amendment extends to all instruments that constitute bearable arms.
Looks at PLAIN MEANING of text, history, and precedent (interprets Miller differently).
Uses 18th century dictionary, how words are used in other places of Constitution, state
constitutions.
PP: Enshrinement of constitutional rights > problem of handgun violence in this
country.
DISSENTING (Stevens): Second Amendment was adopted to protect the right of
people to maintain a well-regulated militia. Says the question is SCOPE of individuals
right, and defines this right more narrowly. Then argues that PRECEDENT should rule
here, even if arguments fail. The view in Miller is the most natural reading of the
Amendments text and the interpretation most faithful to the history of its adoption.
DISSENTING (Breyer): Second Amendment protects militia-related interests, not selfdefense related interests. Furthermore, the Amendment permits govt to regulate the
interests that it serves. I would defer to a legislatures empirical judgment here.
Congressional Limits. The ability of Congress to restrict federal court jurisdiction.
o Article III of the Constitution provides that the Supreme Court shall have appellate
jurisdiction, both as to Law and Fact, with such exceptions, and under such Regulations
as the Congress shall make. No definitive answer to question of whether Congress
may use this authority to restrict S. Ct. jurisdiction, but since the 1940s, over 100
proposals were introduced in Congress to restrict fed. Ct. jurisdiction over certain
topics.
o Exceptions and Regulations Clause. Still no consensus as to what this clause means:
A. Those who believe that this provides Congress with broad powers to remove
matters from the Supreme Courts purview first Congress did not vest S. Ct.
with appellate jurisdiction over all types of cases and controversies
enumerated in Article III.
B. Those who believe that Congress is limited in its ability to control S. Ct.
jurisdiction. the term exceptions was intended to modify the word fact
C. Argument that even though Congress is given authority to limit S. Ct.
jurisdiction under the text of Article III, this power cannot be used in a manner
that violates the Constitution. (general separation of powers).
o Ex Parte McCardle (1868): Newspaper editor arrested by federal officials for writing
articles highly critical of Reconstruction and of the military rule of the South. He filed a
petition for a writ of habeas corpus (right to go before judge to determine
factual/legal justifications of being detained) pursuant to 1867 statute. S.Ct.
considered whether it had jurisdiction to hear McCardles constitutional claims in light
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of the recently adopted statute denying it authority to hear appeals under the 1867
Act that was the basis for jurisdiction in McCardles petition. H: The Court cannot
proceed to pronounce judgment in this case for it no longer had jurisdiction of the
appeal and judicial duty is not less fitly performed by declining unwanted jurisdiction
than in exercising firmly that which the Constitution and the laws confer.
*Factual distinction between MPA (Marriage Protection Act) and 1867 law, both
restricting S. Ct.s power to hear types of cases. MPA strips fed. Courts of all
jurisdictions ability to hear challenges to laws denying marriage. McCardle
inconclusive as to whether it permits IJLs (Issue Specific Jurisdictions) The Court
implicitly held that they DID have power to repeal the 1867 law, and upholds the 1868
law (an IJL).
o Less than a year after its decision, the S.Ct. held in Ex Parte Yerger that it had
authority to review habeas corpus decisions of lower federal courts under the
Judiciary Act of 1789. mooted the case bc McCardle could bring under 1789 Act.
o CONSIDER: structurally, state court judges are less likely to be able to neutrally
enforce constitutional provisions. Federal courts are structured to give more
protection to individual rights. Could affect federal judges (appointments to circuit,
dont want negative publicity)
Justiciability Limits. The series of judicially created doctrines that limit the types of matters that
federal courts can decide.
o Article III, 2 authorizes federal courts to hear several types of cases and
controversies. S.Ct. has interpreted these words as giving rise to justiciability
doctrines judicially created limits on the matters that can be heard in federal courts.
Some of these are constitutional, meaning that Congress by statute can override
them. Some are prudential, meaning that they are based on prudent judicial
administration and can be overridden by Congress. The S.Ct. explained that the
requirement for cases and controversies limits the business of federal courts to
questions presented in an adversary context and in a form historically viewed as
capable of resolution through judicial process.
o Five Major Justiciability Doctrines all must be met for any federal court, at any level,
to hear a case.
A. Prohibition Against Advisory Opinions.* WHAT question. Federal courts
cannot issue advisory opinions there MUST be an actual dispute between
adverse litigants. There must be a substantial likelihood that a federal court
decision in favor of a claimant will bring about some change or have some
effect. Duty of making recommendations also not of judicial nature.
B. Standing.* WHO question. The most important justiciability requirement the
determination of whether a specific person is the proper party to bring a
matter to the court for adjudication. P has standing to enforce specific legal
obligations whose violations where a DIRECT harm.
o Constitutional Standing Requirements:
1) INJURY. P must allege that he/she has suffered or imminently will
suffer an injury.
2) CAUSATION. P must allege that the injury is fairly traceable to the
defendants conduct.
3) REDRESSABILITY. P must allege that a favorable federal court
decision is likely to redress the injury.
o Major Prudential Standing Principles:
1) A party generally may assert only his or her own rights and cannot
raise the claims of third parties not before the court.
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2) P may not sue a taxpayer who shares a grievance in common with

all other taxpayers.
o Allen v. Wright (1984): Parents of black schoolchildren filed an action
to compel the IRS (D) to deny tax-exempt status to racially
discriminatory private schools, in conformity with the law. H: Neither
of Ps alleged injuries support their standing to bring this lawsuit! One
does not have standing to sue in federal court unless he can allege the
violation of a right personal to him.
REASONING (OConnor): Here, it is inappropriate to order the
SPECIFIC RELIF that P is seeking undue judicial intrusion into
discretionary powers of executive branch and violation of separation
of powers. That principle counsels against recognizing standing in
a case brought, not to enforce specific legal obligations whose
violation works a direct harm, but to seek a restructuring of the
apparatus established by the Executive Branch to fulfill its legal
duties.
DISSENTING (Stevens): Does not articulate different governing
principles but how they are APPLIED. Key fact: the particular relief
sought and whether it crosses the line.
o Massachusetts v. Environmental Protection Agency (2007): A state
and several other parties challenged the EPA's failure to enforce the
Clean Air Act against motor vehicle emissions. H: A plaintiff has
standing if it demonstrates a concrete injury that is both fairly
traceable to the defendant and redressable by judicial relief. Elements
of standing are easier to meet if you are a State rather than an
individual.
o Bond v. United States (2011): Bond was indicted for stealing mail and
for violating the chemical weapons treaty. Court of Appeals found
that Bond lacked standing to make a Tenth Amendment claim. H:
Reversed. A person prosecuted under a federal statute has standing
to argue that it violates the Tenth Amendment and infringes states
rights. 10th Amendment federalism guarantees are designed to
promote INDIVIDUAL LIBERTY benefits state govts and individual
citizens.
*Bond implements general principles of Lopez and Morrison cases.
C. Ripeness. WHEN question. Cannot be premature (e.g., involved in admin
proceedings)
D. Mootness. Counterpart of ripeness. No longer present or sufficient
case/controversy (e.g., govt revokes a pre-existing policy)
E. Political Question Doctrine. Constitution vests discretionary authority in
political official in issues such as foreign policy, military policy, electoral
process, impeachment process, ratifying amendments, etc. Voters can express
at polls.
CONSTRAINTS ON FEDERAL JUDGES. Some created by federal judges themselves!
o Absence of enforcement power Eg., Marshall not ordering Jefferson
o Art. III specifications of jurisdiction within one of the categories listed in Art. III
o Certiorari S.Ct.s discretionary jurisdiction writ on which petitions to S.Ct.
o Congressional (non)authorization of jurisdiction Congress has to pass a statute
authorizing
o Congressional regulation of jurisdiction*
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o
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o
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o
o
o
o
o
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Constitutional amendment to specifically overturn S.Ct. decisions generally

Decision making principles encouraging judges to decide on narrowest possible
ground, including the principle of constitutional avoidance example of judicial
restraint
Govt power to moot out a case in which it is a party by, e.g., saying that it is
changing its policy in question. wed rather abandon it than kill the chance
Impeachment
Interpretative principles (which constrain judicial discretion)*
Judicial self-regulation through codes of ethics and judicial commissions
Justiciability doctrines*
Nomination/confirmation process
Stare decisis
Substantive constitutional doctrine that incorporates deference to elected officials
a lot in foreign policy arena
Written, published decisions forces judges to explain decisions and reasoning.

The Federal Legislative Power/Federalism

I.

Congress and the States.

Basic principle: Congress may act only if there is express or implied authority in the Constitution,
whereas states may act unless the Constitution prohibits the actions.
In evaluating the constitutionality of any act of Congress, always ask:
1) Does Congress have the authority under the Constitution to legislate?
2) If so, does the law violate another constitutional provision or doctrine, such as infringing
separation of powers or interfering with individual liberties?
Justifications for Federalism:
1) Danger of tyranny at federal level is much more ominous than the autocratic rule at
state/local level.
2) States are closer to the people and more likely to be responsive to public needs and
concerns.
3) States can serve as laboratories for experimentation of new social, economic, and political
ideas.
Most important S.Ct. decision in American history defining scope of Congresss power:
McCulloch v. Maryland (1819): McCulloch (D), the cashier of the Baltimore branch of the U.S.
bank, issued bank notes in violation of a Maryland (P) statute providing that no bank, without
authority from the state, could issue bank notes except on stamped paper issued by the state.
Maryland sued D for failing to pay the taxes and D contested the constitutionality of the statute.
H: 1) Congress has the authority to establish the Bank of the United States.
4 major arguments in support:
A. History and Practice. BUT longevity is not enough if something is a clear violation of
the Constitution.
B. Federal powers come from the PEOPLE, not the states. The creature should be seen
as subordinate to the CREATOR. Constitution created an ocean of federal power with
islands of state power.
C. Article I- various provisions; 10th Amendment; Supreme Clause. Federal laws are
supreme. To be effective, they also must be quite broad. Also, NOT in prohibited
powers listed in Art I, 9.
D. Necessary and Proper Clause. Broad definition of necessary which does not equal
essential. Congress needs to carry out enumerated powers. (also next to proper)
Beyond BUS issue
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A. General Principles about Congressional Power. Expands Congressional power!

General test are levels of scrutiny, stricter with more valuable rights.
B. Criticism of this holding
2) Maryland may NOT impose a tax on the Bank of the United States.
2 major arguments in support:
A. Federal Supremacy. Only national government can be trusted!! (MD asks why?)
B. Abuse of Power/Accountability.
REASONING (Marshall): Interprets necessary as meaning convenient or useful or
appropriate. In Art. I, 10, the phrase absolutely necessary is used. Marshall is NOT
saying that the explicit grant of some power should implicitly grant others. He is saying that
you have to have means of enacting powers Congress expressly has. (P. 132)
Let the end be legitimate, let it be within the scope of the constitution, and all means which
are appropriate, which are plainly adapted to that end, which are not prohibited, but consist
with the letter and spirit of the constitution, are constitutional. General Standards that S.
Ct. considers for EVERY case (in addition to specific power-granting clauses). Most basic test!!

II.

The Necessary and Proper Clause.

III.

United States v. Comstock (2010): Attorney General certified that D was a sexually dangerous
person and detained him beyond the date he would otherwise be released pursuant to a federal
civil-commitment statute. The govt argued that under the necessary and proper clause, the
law did not exceed Congresss constitutional authority. H: Under McCulloch, the govt does have
authority under Art. I to enact this program.
REASONING (Breyer): The Clause grants Congress broad power to enact laws that are rationally
related and reasonably adapted to executing the other enumerated powers. The statute
properly accounts for state interests and the links between the law and an enumerated Article I
power are not too attenuated.
DISSENTING (Thomas): Todays opinion breathes new life into the Clause, and comes perilously
close to transforming it into a basis for the federal police power that we always have rejected.

Commerce Power from the 19th Century through the Early 1990s

The Commerce Clause has been the focus of the vast majority of S. Ct. decisions that have
considered the scope of congressional power and federalism.
There have been roughly four eras of Commerce Clause jurisprudence.
Continuing question of whether the 10th Amendment imposes independent, judicially
enforceable limits on Congresss Article I power.
o NARROW VIEW: only reaffirms the limited nature of Congresss power under Art. I
itself. NOT a separate constraint on Congress, but a simple reminder. A federal law
would never be found unconstitutional as violating the 10th Amendment but only as
exceeding scope of Congresss Art. I powers GIBBONS approach
o BROADER VIEW: goes beyond a reaffirmation of the limited nature of Congresss
power under Art. I itself. Even if Congress has power there is an additional hurdle to
jump through when the 10th Amendment is interpreted broadly!! 10th Amendment
reserves a zone of activity to the states for their exclusively control and federal laws
intruding into this zone are unconstitutional HAMMER approach
Commerce Clause
10th Amendment
First Era
Broad
Narrow
Second Era
Narrowest
Broadest
Third Era
Broadest
Narrow
nd
Fourth Era (similar to 2 )
Narrow
Broad
Among the Several States options:
1) Purely Interstate. Between 2 or more states. Clearly included!!!
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2) Both inter and intra state dimensions. Mixed

3) Purely intra state. Only within a single state
*Does CC go beyond to extend to 2 and 3?
FIRST ERA: early 19th century-1890s. Commerce power was broadly defined and minimally
used. NARROW VIEW of 10th Amendment
o Gibbons v. Ogden (1824): Ogden (P), after acquiring a monopoly right from the State
of New York to operate ships between New York City and New Jersey, sought to enjoin
Gibbons (D) from operating his ships, licensed by the federal govt, between the same
points. H: If a state law conflicts with a congressional act regulating commerce, the
congressional act is controlling. TRACES OF DORMANT COMMERCE CLAUSE
REASONING (Marshall): P argues for commerce to be defined as only buying and
selling, but the meaning of commerce should be defined BROADLY. Commerce
includes navigation. The word among means intermingle with includes both INTRA
and INTERstate commerce. It is the power to regulate; that is, to prescribe the rule
by which commerce is to be governed. This power, like all others vested in Congress, is
complete in itself, may be exercised to its utmost extent, and acknowledges no
limitations other than are prescribed in the constitution. If, as has always been
understood, the sovereignty of Congress, though limited to specified objects, is plenary
as to those objects NO JUDICIALLY ENFORCEABLE limits on Congresss power!
*Still respected as precedent! Another example of assigning discretion to legislative
branch.
SECOND ERA: 1890-1937. The Court narrowly defined the scope of Congresss commerce power
and used the Tenth Amendment as a limit. BROADEST VIEW of 10th Amendment.
o ALSO LOCHNER ERA! Court aggressively protected economic/property rights under
the DP Clause. Did not protect civil or political or personal liberties during this time!
o Hammer v. Dagenhart (1918): Congress passed a law prohibiting the shipment in
interstate commerce of any products of any mills, mines, or factories that employed
children. H: Congress does NOT have the commerce power to pass this law.
REASONING (Day): The grant of power of Congress over the subject of interstate
commerce was to enable it to regulate such commerce, and not to give it authority to
control the states in their exercise of the police power over local trade and
manufacture. holding limits Congresss CC regulation of PRIVATE sector in areas
that the Court deemed subject to regulation only by the states, and not natl govt.
DISSENTING (Holmes): I should have thought that the most conspicuous decisions of
this Court had made it clear that the power to regulate commerce and other
constitutional powers could not be cut down or qualified by the fact that it might
interfere with the carrying out of the domestic policy of any State. But I had thought
that the proprietary of the exercise of a power admitted to exist in some cases was for
the consideration of Congress alone and that this Court always had disavowed the
right to intrude its judgment upon questions of policy or morals. It is not for this Court
to pronounce when prohibition is necessary for the regulation of alcohol, but not as
against the product of ruined lives. Holmes cites Gibbons and McCulloch. this view
is now the law of the land!
Hammer was a COMPLETELY REVERSAL of non-enforceable view of 10th Amendment!
THIRD ERA: 1937-early 1990s. The Court expansively defined the scope of the commerce power
and refused to apply the Tenth Amendment as a limit. Here, the Court even held that purely
LOCAL transactions could apply. NARROW VIEW OF 10th Amendment and generally, BROAD
definition of commerce (with the exception of a period of BROAD view of 10th Amendment
with the 1976 ruling of National League, limiting Congresss CC regulation of states in their

capacity as employers, and more generally bars Congress from interfering with states other
traditional govt functions, but Garcia reversed in 1985)
o NLRB v. Jones & Laughlin Steel Corp. (1937): launches the 3rd period. Jones (D), a
manufacturing company with subsidiaries in several states and nationwide sales, was
charged with an unfair labor practice under the National Labor Relations Act. In
defense, D claimed that the Act was an unconstitutional attempt to regulate intrastate
production. H: Acts which DIRECLTY BURDEN or OBSTRUCT interstate or foreign
commerce, or its free flow, are within the reach of the congressional commerce
power, including labor disputes. It is no longer necessary to draw the distinction
between direct and indirect effects on interstate commerce. Congress can
regulate any activity that has a significant effect on interstate commerce, whether
direct or indirect.
REASONING (Hughes): Congress can regulate production, and congressional authority
is not limited to transactions which can be deemed an essential part of a flow of
such commerce. Court REVERSES the Carter case, where the Court held that the
effects must be DIRECT and insisted on formalistic distinctions. This approach is more
functional and practical.
DISSENTING (McReynolds): Commerce Power should be limited to activity in which
the impact on interstate commerce is direct and material.
o United States v. Darby (1941): Darby (D) was a lumber manufacturer, some of whose
goods were later shipped in interstate commerce. He was indicted for violation of the
wage and labor provisions of the Fair Labor Standards Act and defended on the ground
that as an intrastate producer he was not subject to federal regulation. TC dismissed
indictment. H: Judgment reversed the FLSA was within the commerce power. The
10th Amendment is but a truism overruled Hammer. Return to NARROW View
of 10th Amendment!
o Wickard v. Filburn (1942): Filburn (D) was ordered to pay a penalty imposed by the
Agriculture Adjustment Act for producing wheat in excess of his assigned quota. He
argued that the federal regulations could not be constitutionally applied to his crops
because part of his crop was intended for his own consumption, not for interstate
commerce. H: Congress can regulate trivial, LOCAL, INTRASTATE activities that have an
aggregate (economic) effect on interstate commerce, even if the effect is indirect.
Here, the wheat was for personal use and NEVER EVEN LEFT THE FARM! NARROW
VIEW of 10th Amendment.
*Majority here adopts a DEFERENTIAL use of judicial review (Holmes) uses the
phrase Congress MAY
o Heart of Atlanta Motel, Inc. v. United States (1964): The applicability of the 1964 Civil
Rights Act to a business local in scope was challenged as unconstitutional. H: Congress
may regulate businesses local in scope if their business activities have some impact on
interstate commerce.
CONCURRING (Douglas): Uneasy resting the decision on CC rather than Section 5 of
the 14th Amendment (Equal Protection). It is more appropriate to rest civil rights
legislation on the constitutional status of the individual, not the impact of commerce.
*Congress chose CC as authority because the Court had narrowly construed the 14th
Amendment power in The Civil Rights Cases.
o Katzenbach v. McClung (1964): Ollies BBQ refused sit down service to blacks. Lower
court found that a substantial portion of the food served in the restaurant had moved
in interstate commerce. H: Although an activity is local and may not be regarded as
commerce, it may still be reached by Congress if it exerts a substantial economic
effect on interstate commerce. The Commerce power is BROAD and gives Congress
10

IV.

authority to regulate activity with only a minor impact on interstate commerce.

*Debate over whether effect has to be SUBSTANTIAL or just ANY effect. The Dissent in
the 1971 case, Perez v. United States, argued that AN effect isnt enough. J. Rehnquist
also wrote: It has long been established that there must be instead a showing that
the regulated activity has a substantial effect on that commerce.
FOURTH ERA: early 1990s. The Court again narrowed the scope of Congresss commerce power
and revived the Tenth Amendment as an independent, judicially enforceable limit on federal
actions. The Court honed in even more on Congresss regulation of states than in private sector
Court will ONLY consider 10th Amendment if laws only regulate states!
o New York (1992): limits Congresss CC regulation of states as lawmakers; specifically,
bars Congress from commandeering states to enact laws BROAD VIEW of 10th
o Printz (1997): limits Congresss CC regulation of states as enforcers of federal law;
specifically bars Congress from commandeering states to enforce federal laws
BROAD VIEW of 10th
o Reno (2000): Distinguishes New York and Printz on factual bases that at least limit if
not undermine the two cases. ?? view of 10th. Court doesnt say its changing
doctrine!
o Health Care Decision (2012): limits Congresss exercise of its Spending Clause power;
Congressional grant of funds to states on condition that states enforce certain
regulations crossed the line from permitted encouragement to prohibited coercion.
Least broad but still BROAD view of 10th. different bc upheld based on
Congresss taxing/spending power.
3 periods when the Court has enforced the 10th as an INDEPENDENT check on Congresss power!
2nd, 3rd, 4th
What actors do the Judicially-enforced 10th Amendment bar to certain federal laws apply to?
o 2nd Era. Private sector only, both private sector & states, states only
o 3rd Era. Both private sector & states, states only
o 4th Era. States only

Commerce Power from the Early 1990s on (most recent cases before Health Care decision)

First time in almost 60 years that S.Ct. invalidated a federal statue due to Commerce Clause:
United States v. Lopez (1995): Lopez (D) was convicted under the 1990 Gun-Free School Zones
Act, which prohibited guns near schools. H: The 1990 Act EXCEEDED Congresss CC regulatory
power. CATEGORIES of COMMERCE POWER - A law passed under this clause must relate to:
1) A channel of Interstate Commerce.
Cites Heart of Atlanta, motel is channel (direct regulation). Car is channel in Pierce
2) An instrumentality of interstate commerce.
Cites Darby prohibits interstate transportation of commodity through channel, cites case
moving interstate railroads, highways in Pierce
3) An activity having a substantial effect on interstate commerce.
Substantial relation
*First 2 arent controversial, no clear dividing line between channels/instrumentalities. PostLopez, MUST BE SUBSTANTIAL! (new test seems to have same function as direct/indirect effects
on commerce)
REASONING (Rehnquist): A regulated activity is NOT economic in nature. Even Wickard, which is
perhaps the most far reaching example of Commerce Clause authority over intrastate activity,
involved economic activity in a way that the possession of a gun in a school zone does not.
majority interprets prior 3rd era precedents as DEMANDING economic/commerce activity!
CONCURRING (Kennedy): When an exercise of power under the Clause unduly upsets the balance
of power between the states and the national government (fed & individual liberty), as does the
law at issue here, it is proper for the Court to intervene.
11

CONCURRING (Thomas): The substantial effects test is a New Deal innovation that goes far
beyond the original intent of the Framers, who had a much narrower view of what commerce
could be regulated. argues for even STRICTER interpretation.
DISSENTING (Breyer): In determining whether a regulated activity has a significant impact on
interstate commerce, it is necessary to consider not a single example of the regulated activity, but
rather, the cumulative effects of all similar instances of the conduct. Distinction between
economic and non-economic is FORMALISTIC.
2nd time federal law struck down since 1937
United States v. Morrison (2000): P brought suit against two football playing male students (D)
and Virginia Polytechnic University under the Violence Against Women Act (VAWA). Note: VAWA
was premised on CC & Secs of 14th Amendment because it was passed after Lopez and needed a
fallback. H: Commerce Clause regulation of intrastate activity may be upheld only where the
activity being regulated is economic in nature. Debate over CATEGORY 3 substantial effect
when there is no channel/instrumentality! 4 criteria to assess when federal law fits under this
category:
1) Regulated activity must be economic in nature.
2) Statute contains express jurisdictional element. Language that CONNECTS to interstate
commerce of regulated activity.
3) Express Congressional findings. re: effects on interstate commerce.
4) how close a connection between regulated activity & interstate commerce.
*No bright line rule! Just reference points/key elements
REASONING (Rehnquist): Explains that 3 of the factors are not satisfied only congressional
findings present that found billions of dollars in costs BUT rejects the argument that there is
substantial effect b/c it is NON-ECONOMIC regulation in area that is fundamentally left to the
states!!
DISSENTING (Souter): Even though the test is too strict, the law should still pass! The fact of the
substantial effect is a question for Congress in the first instance here, Congress assembled a
mountain of data demonstrating the effects of violence against women on interstate commerce.
Lopez & Morrison: why FEDERALISM is so important. Majority opinions stress maintaining some
significant role for state govts by reigning in federal power. Also stresses another value of
INDIVIDUAL FREEDOM, which has a vital connection to limited federal power.
Pierce County v. Guillen (2003): after Lopez/Morrison, opinion by J. Thomas (holds narrowest
view of Congresss CC power). Upheld federal highway safety regulation! (highways are
CHANNELS, cars are INSTRUMENTALITIES). Rationale basis review Congress could reasonably
believe that adopting a measure eliminating an unforeseen side effect of the information
Inconsistent at first blush with Morrison and Lopez DRUG EXCEPTION
Gonzales v. Raich (2005): Two sufferers of serious physical ailments sought to grow and use
marijuana for medicinal purposes as permitted by California law. H: CC permits Congress to
criminalize local cultivation and medicinal use of marijuana even if those uses otherwise comply
with states laws. Courts consistently and persistently modify con law rules for the war on drugs.
this case potentially a drug exception to narrow view on CC in 4th era.
REASONING (Stevens): construes Morrison and Lopez narrowly. Upheld weeping federal power
only recourse is through electoral process.
CONURRING (Scalia): CC itself is not sufficient, but the law has additional support in the
Necessary and Proper Clause! Congressional regulation of Ps proposed use of marijuana should
be permitted as a NECESSARY part of CSAs overall regulatory scheme.
DISSENTING (OConnor): Opposes CAs law on public policy grounds but reaches constitutional
law conclusions that go the opposite way. Regardless of how the Court might assess the wisdom
of CAs laws, the states citizens should be permitted to conduct the local experiment that they
chose. not meaningful protection of federalism. Need to identify objective markers for
12

V.

confining the analysis in commerce clause cases!!

DISSENTING (Thomas): This decision means that Congress can regulate almost anything under
the Commerce Clause. STRONG VIEW
It is too soon to know how far the Court will go in limiting Congresss powers or using the 10th
Amendment as a constraint on federal authority. All of these decisions limiting the scope of
Congresss CC power were 5-4 rulings!! No decisions on the scope of CC or meaning of 10th
Amendment since C.J. Roberts and J. Alito replaced J. Rehnquist and J. OConnor.

The 10th Amendment as a Limit on Regulating State Governments, from 1976 on.

Argument for a narrow reading of the 10th Amendment is that it simply mirrors the Commerce
Clause, therefore, if the Commerce Clause permits any Congressional action, that action also
complies with the 10th Amendment.
o BUT Rule against surplusage.
o BUT wouldnt the entire Bill of Rights be superfluous then?
th
SUCCESSFUL 10 AMENDMENT CHALLENGE
National League of Cities v. Usery (1976): Congress, in 1974, extended the minimum wage and
overtime provisions of the Fair Labor Standards Act to cover all state and municipal employees. H:
Pursuant to the CC, Congress may not regulate the labor market insofar as it concerns state and
municipal employees no problem when governing private employees!
REASONING (Rehnquist): This exercise of congressional authority does not comport with the
federal system of govt embodied in the Constitution. temporary BROAD VIEW of 10th
Amendment in 3rd era
DISSENTING (Brennan): Strong dissent. This court has held that the Commerce power be absolute
since Gibbons v. Ogden.
OVERRULING National League; reviving narrow definition of 10th Amendment!
Garcia v. San Antonio Metropolitan Transit Authority (1985): Garcia (P) appealed from a decision
for San Antonio Metropolitan Transit Authority (D) holding that municipal ownership and
operation of a mass transit system is a traditional governmental function and thus, according to
the test established in National League, its system was immune from the requirements of the Fair
Labor Standards Act. H: Reversed. The application of FLSA to SAMTA is not destructive of state
sovereignty or violative of any constitutional provision.
REASONING (Blackmun): The prerequisite for govt immunity under National League, that the
federal statute infringes on traditional govt functions, has proved to be an unworkable standard.
The case gave no indication of how to determine whether a function was a traditional or a
nontraditional one.
DISSENTING (Powell): The Court here allows Congress to assume a states sovereign power free
from judicial review.
*J. Rehnquist is confident that his view will again prevail.
New York v. United States (1992): New York (P) sought a declaration that the Low-Level
Radioactive Waste Policy Amendments Act (1985 Act) was unconstitutional. H: the fed. Govt may
NOT order a state govt to enact particular legislation.
REASONING (OConnor): The federal govt may provide incentives for states to regulate in a
certain way, but cannot force a state to do something. 10th Amendment is redundant bc there are
limits under Article I power. States are not mere political subdivisions of the United States.
CONCURRING/DISSENTING (White): The majority wrongly finds that states cannot consent to
relinquish some sovereignty. 10th Amendment restrictions on the commerce power are procedural
limits, designed to prevent federal destruction of state govts, not to protect substantive areas of
state autonomy. The Court interpreted the Framers decision to draft Constitution (govt acted by
ordering states to enact legislation under the Articles of Confederation) as a rejection of federal
power to order states to enact laws. State officials consented to statute but it is for the Court
to determine its constitutionality. The ultimate benefit of the 10th Amendment is not for STATES,
13

VI.

but for individuals. raises theme of formalism v. functionalism. In its formalistically rigid
obedience to federalism, the Court gives Congress fewer incentives to der to the wishes of state
officials in achieving local solutions to local problems. Majority is erecting several additional
formalistic hurdles to clear before achieving exactly the same objective!!!
CONCURRING/DISSENTING (Stevens): The notion that Congress may not order states to
implement federal legislation is incorrect/unsound. The federal govt regulates state railroads,
schools, prisons, and elections, and times of war, Congress could undoubtedly command states to
supply soldiers.
*Is New York overruling Garcia?
Basically enforcing some anti-commandeering principle of New York
Printz v. United States (1997): Two chief law enforcement officers (CLEOS) filed actions
challenging the constitutionality of several interim provisions of the Brady Act, which required that
they perform background checks on prospective gun purchasers. H: The fed. Govt may neither
issue directives requiring the states to address particular problems, nor command the states
officers, or those of their political subdivisions, to administer or enforce a federal regulatory
program.
DISSENTING (Stevens): The Brady Act was passed I response to what Congress described as an
epidemic of gun violence, in essence, a national emergency. When Congress exercises the
powers delegated to it by the Constitution, it may impose affirmative obligations on executive and
judicial officers of state and local govts as well as ordinary citizens!
Majorities in New York and Printz argue that Congress could have achieved the same objectives
through different forms of law.
Unanimous decision to reject 10th Amendment claim; distinguished from New York & Printz, which
both held federal statutes invalid bc they commandeered the state legislative process.
Reno v. Condon (2000): A federal statute regulated the disclosure of private information contained
in state and motor vehicle department records. The state was challenged as violating the Tenth
Amendments principles of federalism. H: Congress MAY regulate the states activities where the
regulation does not require the states in their sovereign capacity to regulate their citizens. The
Court does NOT strike down statute, distinguishing it because it regulated BOTH states & private
sector.
REASONING (Rehnquist): Passes BOTH hurdles. 1) The information in the state motor vehicle dept
records is a thing in interstate commerce (read: instrumentality) because it is used by insurers,
manufacturers, direct marketers, and others engaged in interstate commerce. Congress has
authority to regulate it under the commerce clause. 2) Even though the state may have to devote
time and effort to complying with the statute, the statute does not require the state to regulate its
own citizens, to enact legislation, or to assist the enforcement of federal states regulating private
individuals. the law does not implicate the 10th Amendment.
*3 factors: 1) Congress is regulating state commercial activity; 2) not imposing an affirmative
action but a negative prohibition; 3) law dos not only target states but also applies to the private
sector actors generally applicable

Congressional Power to Tax and Spend

Article I, 8: Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts and provide for the common Defence and general Welfare of the United States; but
all Duties, Imposts and Excises shall be uniform throughout the United States.
o Ways to read the language general welfare:
Broadest: reading it as a stand-alone power (i.e., through non-tax laws) why not read it
this way? Govt would have unfettered power, and general police power belongs to states!
Broad: Congress can tax for general welfare.
United States v. Butler (1936): The Agricultural Adjustment Act of 1933 stated that there was a
national economic emergency arising from the low price of agricultural products in comparison
14

VII.

with other commodities. To remedy this situation, a tax would be collected from processors of an
agricultural product. The revenue raised would be paid to farmers who curtailed their production
of that product. H: Tax is invalid. Congress may not, under the pretext of exercising the taxing
power, accomplish prohibited ends, such as the regulation of matters of purely state concern and
clearly beyond its national powers. - How do you read the phrase general welfare ?
REASONING (Roberts): The federal govt is attempting to regulate wholly state activity through the
Spending Power as an enforcement mechanism.
DISSENTING (Stone): The Act is not unconstitutional merely because it seeks to defray an
expenditure for the welfare of the people rather than use taxes to support another govt function.
*Surprising decision bc courts were reading Congresss commerce power narrowly in 1936 (2nd
era). Implies that there are different interpretations of commerce and taxing clauses, even when
Congress had the BROADEST reading of 10th Amendment.
Sabri v. United States (2004): Defendant developer offered bribes to a city councilman to ease his
real estate building plans. He was convicted for violating the federal antibribery statute, which he
now challenges as unconstitutional. H: The absence of a nexus between federal funding and
prohibited conduct does not result in a statutes presumed unconstitutionality.
REASONING (Souter): REJECTS substantial connection requirement. The Spending Power permits
the federal govt to condition the provision of federal funding upon certain conditions, such as the
prohibition of accepting bribes. Govt is acting within its legitimate authority under the Necessary
and Proper Clause. *Actually joined by justices normally with narrow views of commerce power.
CONCURRING (Thomas): Accuses govt of being MORE deferential than McCulloch. Necessary and
Proper Clause does not give govt unfettered power! This case should have been decided on
Commerce Clause jurisprudence, but judgment is still correct. A CONNECTION between corrupt
transaction and federal benefit should have to be shown!
South Dakota v. Dole (1987): Congress passed a law withholding federal highway funds to states
with a minimum drinking age of less than 21 years. H: Law is constitutional.
o SPENDING 4-Part (5-Part?) TEST:
1) The Exercise of spending power must be in the pursuit of general welfare. Courts
should defer substantially to the judgment of Congress in this consideration.
2) If Congress desires to condition the States receipt of federal funds, it must do so
unambiguously. States must be able to exercise their choice knowingly, cognizant of the
consequences of their participation.
3) Conditions on federal grants might be illegitimate if they are unrelated to the federal
interest in particular national projects or programs.
4) Other constitutional provisions that may provide an independent bar to the
conditional grant of federal funds.
5) Financial inducement so coercive to pass the point which pressure turns into
compulsion.
REASONING (Rehnquist): It is well recognized that Congress may use its spending power to
induce cooperation by states in areas that it cannot regulate directly.

Congresss Power to Enact the New Federal Health Care Law

Key provision of HC law (Individual Mandate) exceeds CC power for 3rd time since 1937
National Federation of Independent Business v. Sebelius (2012): In 2010, Congress enacted the
Patient Protection and Affordable Care Act. The Act aims to increase the number of Americans
covered by health insurance and decreases the cost of health care. This case concerns
constitutional challenges to both the individual mandate (requiring individuals to purchase a
health insurance policy providing a minimum level of coverage) and the Medicaid expansion
(giving funds to the States on the condition that they provide specific health care to all citizens
whose income falls below a certain threshold). H:
1) Individual mandate is a tax within the scope of Congresss taxing and spending power (5-4).
15

2) Individual mandate not within the scope of the commerce power or N&P Clause (5-4).
3) It exceeded the scope of the spending power and violated the10th Amendment for the Court to
cut off all Medicaid funds to states that do not meet the new terms of the program (7-2).
REASONING (Roberts): Uses deferential standard (rational basis), quotes Marbury.
1) The question is whether (the mandate maybe upheld as within Congresss enumerated power to
collect Taxes because it can be regarded as establishing a condition that triggers a tax) is a fairly
possible interpretation of the mandate. The exaction looks like a tax in many respects.
*Constitutional avoidance factor- govt asks to interpret IM as imposing a tax if it would otherwise
violate Constitution.
2) IM does not regulate existing commercial activity, but instead compels individual to BECOME
active in commerce. Construing the CC to permit Congress to regulate individuals because they
are doing nothing would open a new and vast domain to congressional authority. The IM is also
not under the N&P Clause an essential component of insurance reforms.
3) ME crosses the line. The financial inducement Congress has chosen is a gun to the head.
Congress may not penalize States that choose not to participate in the new program by taking
away existing Medicaid funding. 7 vote majority surprising here. Before this case, Congress had
NEVER struck down this type of law under spending power!
*Roberts took different approach of the 10th Amendment
CONCURRING/DISSENTING (Ginsburg, Sotomayor, Breyer, Kagan): Maintains that Congress had
power to grant IM under all 3 power-granting clauses; charges majority with formalism in
interpreting commerce clause. The Act does not need to be ABSOLUTE necessary (McCulloch).
Roberts is not being sufficiently deferential!! STRONGLY criticizes majoritys reasoning. Also states
that Dissent should be using rational basis review and NOT strict scrutiny.
DISSENTING (Scalia, Kennedy, Thomas Alito): The Act exceeds federal power both in mandating
the purchase of health insurance AND in denying the states Medicaid funding. NO power under
any of the 3 clauses!!
1) To say that the IM merely imposes a tax is not to interpret the statute but to rewrite it. The
holding raises a difficult constitutional question of what IS a direct tax.
2) If Congress is allowed to pass IM under the Commerce Clause, then Congress will have unlimited
power (C.J. Roberts says this also!!)
3) Our decision in South Dakota v. Dole (most recent precedent on attaching strings) makes it clear
that theoretical voluntariness is not enough the federal govt at best pays lip service to the anticoercion principal.
STATES would have power to enact IM bc they have police power and regulate private conduct,
but they wouldnt (residents would move out). There are also alternative measures that could
have been used (e.g., those who did not purchase insurance could be subject to surcharge or
denied full income tax credit). C.J. Roberts is supporting judicial activism, and the Courts ruling
undermines the federal govts limited powers values at every turn. In the name of restraint, it
overreaches. There is something valuable about FORMALISM. The constitutional protections
that this case involves are protections of STRUCTURE. Structural protections (imposed by
federalism and separation of powers) tend to be undervalued or even forgotten by our citizens,
and it is the Courts responsibility to remind our people that the Framers considered these
protections the most important. (Other structural facts - bicameralism, checks & balances)
CONSIDER:
o 2 extreme positions but ALL justices agree on broad guiding principles (Congress has great
latitude; Court should use deferential review; Congress doesnt have general police power)
o This reasoning differed from Heller in the sense that the justices are not as confident in
their decision but admit that the major issues are DIFFICULT.

16

o
o

VIII.

What is left of Congresss law? Did the Court re-write the law that was passed? Decision
could actually constitute a net cutback on Congresss power (arguably all provisions
besides Taxing power).
Those who wanted to cut back on Congresss power arguably lost the battle but won the
war. FACTS TO SUPPORT THIS VIEW:
1) Congress had never struck a conditional grant before this ruling.
2) Congress had only struck down statutes under commerce clause power TWICE since
1937 before this case.
3) Congress had applied McCullochs broad deferential power under N&P Clause before
this decision.
4) Legislative history of this case constitutionality of this case was accepted as a no
brainer, almost no debates at all besides policy effects of this law.
In 2010, Congress was using more deferential review of taxing power. Why didnt
Congress & Obama rely more on taxing power? Politics!
If you want to argue there is a fundamental right burdened by IM, apply the 2 Michael H
analyses.

Congressional Power under the Post-Civil War Amendments

Three extremely important Amendments were added to the Constitution after the Civil War.
o Thirteenth Amendment (1865): prohibits slavery and involuntary servitude, except as
punishment for a crime. can also be used to pass civil rights laws
o Fourteenth Amendment (1868): provides that all persons born or naturalized in the
United States are citizens and that no state can abridge the privileges or immunities of
such citizens, nor may states deprive any person of life, liberty, or property without due
process of law or deny any person of equal protection of the laws.
o Fifteenth Amendment (1870): declared that the rights of citizens of US to vote shall not
be denied or abridged by the US or by any State on account of race, color, or previous
condition of servitude.
The three Reconstruction era amendments contain provisions that empower Congress to enact
civil rights legislation. Two major questions arise concerning this scope of power
o 1) May Congress regulate private conduct under this authority, or is Congress limited to
regulating only govt actions?
2) What is the scope of Congresss power under these amendments?
Whom may Congress regulate under the post-Civil War Amendments?
o Civil Rights Cases (1883): the Court held that Congress, pursuant to 2 of the Thirteenth
Amendment and 5 of the Fourteenth Amendment, may regulate only state and local
govt actions, not private conduct. By an 8-1 decision, the Court held that the Civil Rights
Act of 1875 (broadly prohibiting private racial discrimination by hotels, restaurants,
transportation, and other privately owned entities holding themselves open to public)
was unconstitutional and adopted a restrictive view as to the power of Congress to use
the enforcement provisions to regulate private behavior. The Court also held that
Congress lacked the authority to enact the law under the Fourteenth Amendment,
declaring that the Amendment only applies to government action and therefore cannot
be used to regulate private behavior. more recently affirmed in United States v.
Guest (1966). 6 justices also expressed the view that Congress could prohibit private
discrimination under its 5 powers. even more recently affirmed in United States v.
Morrison (2000), see below
*1964 Civil Rights Act based on Commerce Clause and not 14th Amendment
o Jones v. Alfred H. Mayer Co. (1968): example that Congress, pursuant to 2 of the
Thirteenth Amendment, may prohibit private racial discrimination. (Here, in leasing and
selling property.)
17

Runyon v. McCrary (1976): the Court held that the prohibition of discrimination in private
contracting is within the scope of Congresss power under 2 of the Thirteenth
Amendment.
United States v. Morrison (2000): D was accused of sexually assaulting a freshman student at a
Virginia university and the victim sued the defendant for civil damages under the Violence
Against Women Act (VAWA). D challenged the constitutionality of the civil damages portion of
VAWA. (VAWA based on both CC & 14th Amendment bc they took Lopez into account just in
case CC ground was rejected. The lower federal court held that the law exceeded the scope of
Congresss CC authority.) H: The Fourteenth Amendment does NOT support the enforcement of
the civil damages remedy of the Violence Against Women Act.
REASONING (Rehnquist): The Court reaffirmed the 1883 holding of Civil Rights Cases, construing
14th Amendment enforcement power NARROWLY. Congress may address discriminatory
conduct, subject to certain limitations, through 5 of the Fourteenth Amendment. The remedy
that P seeks must be found in Virginia state courts and not the federal courts!
DISSENTING (Breyer): 1) Congress was regulating STATE conduct when states did not provide
sufficient remedies for gender-motivated violence, not private persons conduct. This Court has
held that Congress at least sometimes can enact remedial legislation that prohibits conduct
which is not itself unconstitutional. part of the reason law was passed was bc of pervasive
discrimination against women when in state courts with these cases! 2) Additionally, the
Commerce Clause provides an adequate basis for the statute before us, and it is the necessary
and proper exercise of legislative power granted to Congress by that Clause. Critics argue
that Congress was really far-reaching when it determined that gender-motivated violence
against women affected commerce bc women were afraid to travel out of fear of assault.
Broad View of 5 of 14th Amendment: Congress is enforcing the Amendment by creating greater
protections than those found by the Court. Both Congress and the Court have authority to
recognize and protect rights of the Constitution. This is creating needed national power to
protect civil rights and liberties! Congress can pass laws that are PREVENTIVE or REMEDIAL.
(E.g., Freedom of Choice Act)
o Katzenbach v. Morgan & Morgan (1966): As part of the Voting Rights Act, Congress
inserted a provision that prohibited restrictions on the right to register to vote because
of the applicants ability to read and write English where the applicant had at least a
sixth grade education in a Puerto Rico school where instruction was primarily in Spanish.
New York had a statutory requirement of an ability to read and write English as a
prerequisite to voter registration. H: A federal statute enacted pursuant to the enabling
clause of the 14th Amendment supersedes a conflicting state law by reason of the
Supremacy Clause of the U.S. Constitution.
REASONING (Brennan): Characterizes it as a remedial right. Makes a textual argument
what does it mean to enforce? The federal law was plainly adapted to furthering
the aims of the 14th Amendment Equal Protection Clause.
DISSENTING (Harlan): The majority has confused the question of legislative power with
the area of proper judicial review. The majority has validated a legislative determination
by Congress that a state law is violative of the Constitution, and there is no evidence
secured to support this.
*template for majority opinion in Boerne!
Narrow View of 5 of 14th Amendment: Congress is not enforcing the Amendment if it is
CREATING new rights. It is solely the Courts role to decide the rights protected under the
Constitution. This is limiting federal power and reserving more governance for the states! Even
under narrow view, Congress can create remedies.
o City of Boerne v. Flores (1997): After the city of Boerne (D) denied Archbishop Flores (P)
a building permit to expand a church, he contended that the permit denial violated the
18

o
o

Religious Freedom Restoration Act (RFRA). The RFRA prohibited the govt from
substantially burdening a persons exercise of religion. H: The RFRA unconstitutionally
exceeds Congresss enforcement power under the DP Clause of the 14th Amendment.
REASONING (Kennedy): While Congress can enact remedial, preventive legislation that
deters violations, the RFRA is not a preventive law. Instead, it defines the scope of the
Free Exercise Clause and nothing in our history extends to Congress the ability to take
such action. Cites Smith case. While the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive change in the
governing law is not easy to discern, and Congress must have wide latitude in
determining where it lies, the distinction exists and must be observed. There must be a
congruence and proportionality between the injury to be prevented or remedied and
means adopted to that end.
DISSENTING: opinions do not disagree with NARROW conception, just the constitutional
standard in Smith. Wants court to re-examine that holding.
Smith case (1990): The S.Ct. significantly narrowed the scope of the Free Exercise Clause,
and held that it cannot be used to challenge neutral laws of general applicability.
What kind of law could Congress pass that would be remedial to reproductive freedom?
FACE Fair Access to Clinical Entrances Act

The Federal Executive Power/ Separation of Powers

I.

Inherent Presidential Power

What if there is neither constitutional nor statutory authority for particular conduct of the
President? Two views:
o Hamilton argued that the difference between the wordings of Article I and II (Article II
does not limit the President to powers herein granted) revealed the framers intention
to create inherent presidential powers.
o Madison disputed this interpretation by contending that the opening language was
simply to settle the question whether the executive branch should be plural or single and
to give the executive a title. According to this position, the President has no powers that
are not enumerated in Article II.
Most important case in section
Youngstown Sheet & Tube Co. v. Sawyer (1952): Faced with an imminent steel strike during the
Korean War, the President ordered governmental seizure of the steel companies to prevent the
strike. The companies challenged his power to take such action as being without constitutional
authority or prior congressional approval. H: The President is bound to enforce the laws within the
limits of the authority expressly granted to him by the Constitution, and he cannot usurp the
lawmaking power of Congress by an assertion of an unspecified aggregation of his specified
powers.
REASONING (Black): Need Constitutional or express Congressional authority for these seizures.
This order cannot be justified by reliance on the Presidents role as Commander-in-Chief. Even
though the term theater of war has enjoyed an expanding definition, it cannot extend this far.
No constitutional provision directly on point here. Takes FORMAL approach This order is not an
executive implementation of a congressional act but a legislative act performed by the President.
CONCURRING (Jackson): The Constitution did not contemplate that the title Commander-in-Chief
of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries,
and its inhabitants.
Still true today The power of the President to act can be viewed as 3 separate categories of
circumstances:
1) the Presidents power is at its maximum when he acts pursuant to express or implied
19

congressional authority.
2) In the absence of a congressional grant of power, the President acts solely on the basis of his
powers as specified in the Constitution.
3) when the President acts in contravention of congressional action, he may do so only where it
can be shown that Congress has exceed its constitutional powers and the President is acting in his
own sphere of authority. last area subject to closet scrutiny
*CASE BY CASE BASIS! Does not distinctively state in which factual situation P did have power. No
general rule.
CONCURRING (Douglas): The only branch of govt that may authorize seizures the branch that may
authorize compensation unless Congress. Usurps power of another branch.
CONCURRING (Frankfurter): Relied on same facts but different interpretation. Were this case of a
long history of congressional acquiescence to a presidential practice our decision might be
different, but no such showing has been made.
DISSENTING (Vinson): Unless Constitution or Congress bars! The Presidents seizure is in accord
with congressional intent to support the resistance of aggression in the world and is in furtherance
of his duty to execute the laws of this nation (national emergency!) Congress implicitly assented
bc President went to Congress and they didnt do anything. Broad view of legislative programs.
ALL DECISIONS policy of steel mills could have bone in a certain way Congress could have
seized the steel mills! Seizing steel mills is not part of CICs responsibilities.
S. Ct. has not decided on the RIGHT approach of the 5 Views:
Least Inherent Exec. Power
NO - Need Const. Authority
Deems congressional
legislation irrelevant.
*line item veto/legislative veto
case
NO - Need Const. or Cong.
Majority in Youngstown
Authority
YES - Unless usurps power of
Douglas in Youngstown
another branch.
YES Unless Const. or Cong.
Vinson (Dissent) in
Bars
Youngstown
YES Unless Const. bars
Curtiss Wright (foreign affairs
Most Inherent Exec. Power
case)
When assessing particular presidential conduct, look at STATUTE that president is arguing he has
power under. Ask: does Constitution implicitly grant the power? Every justice has read
Constitution as having implicit grants or limits on power.
The scope of inherent power, carries over Youngstown analysis:
United States v. Richard M. Nixon, President of the United States (1974): Nixon (D) challenges a
subpoena served on him as a third party requiring the production of tapes and documents for use
in a criminal prosecution. Nixon FIRST argues there should be no judicial review at all! (Nonjusticiability doctrine of political question.) Then argued it is part of his IMPLIED powers. (a matter
of con law) H: Absent a claim of need to protect military, diplomatic, or sensitive national security
secrets, an absolute, unqualified presidential privilege of immunity from judicial process under all
circumstances does not exist.
REASONING (Burger): The balance is tipped AGAINST privilege here. Absent claims of need,
neither the doctrine of separation of powers nor the generalized need for the confidentiality of
high-level communications, without more, can sustain an absolute unqualified presidential
privilege. Nixons basis is on a generalized interest in confidentiality. BALANCING TYPE
APPROACH! Depends on facts/ circumstances.
20

II.

Separation of Powers & Foreign Policy.

III.

Executive privilege: the ability of the President to keep secret conversations with or memoranda
to or from advisors. The Constitution does not mention such authority, and the S. Ct. did not
expressly consider the constitutionality /scope of executive privilege until the Nixon case.
Cheney v. U.S District Court for the District of Columbia (2004): The S.Ct. again considered an
issue of executive privilege. Lawsuit filed claiming that an energy task force chaired by VP Cheney
violated the Federal Advisory Committee Act by holding secret meetings. The Court remanded the
case and did not resolve whether executive privilege applied here. The Court distinguished Nixon
and held that the VP shall bear the burden of invoking privilege with narrow specificity.
arguably overlooks fundamental difference that this case concerned requests for info in a CIVIL
suit. The need for info is heavier in a CRIMINAL suit this inquiry places courts in the awkward
position of evaluating the Executives claims of confidentiality and autonomy; these occasions for
constitutional confrontation between the two branches should be avoided whenever possible.
Foreign policy decision-making is a difficult area of con law. Reliance on framers intent is difficult
(different world); there is also a relative absence of judicial decisions (S.Ct. has frequently declared
that issues concerning foreign policy are non-justiciable political questions; matters for the
legislature and executive to resolve without judicial review.)
United States v. Curtiss-Wright Export Corp. (1936): Curtiss-Wright (D) challenged a joint
resolution from Congress authorizing the President to prohibit the sale of arms to Bolivia and
Paraguay as an unconstitutional delegation of legislative power. H: Constitutional powers of the
fed. Govt regarding foreign affairs are much more expansive than those regarding domestic
affairs.
REASONING (Sutherland): The President has exclusive and plenary (unlimited and open) power as
the sole organ of the federal govt in international relations!
*This broad view of presidential power has been challenged by constitutional scholars.
Dames & Moore v. Regan, Secretary of the Treasury (1981): P filed suit to recover funds owed on
a contract with the government of Iran, but the order of attachment was voided by an executive
agreement. H: The president lacks the plenary power to settle claims against foreign govts
through an executive agreement; however, where Congress at least acquiesces the presidents
actions, the president can settle such claims.
REASONING (Rehnquist): Here, the President acted under the implied authority of Congress.
*Emphasizes the NARROWNESS of decision.
In 1973, Congress adopted the War Powers Resolution to address questions over struggle
between President and Congress over control of the war power. The constitutionality of the WPR
has not been tested, but it is possible that every challenge to the Presidents actions violating the
WPR will be dismissed on justiciability grounds, either for lack of standing or political question.

Congresss Authority to Increase Executive Power

THE LINE-ITEM VETO

William J. Clinton, President of the United States v. City of New York (1998): The Line Item Veto
Act of 1996 allowed the President to cancel provisions that have been signed into law. Parties
affected by President Clintons cancellation of a provision of the Balanced Budget Act of 1997
challenged the constitutionality of the Act. There Is no EXPRESS bar to this power. H: The
cancellation provisions authorized by the Line Item Veto Act were NOT constitutional.
REASONING (Stevens): The Act gives the President the power to cancel in whole three types of
provisions that have already been signed into law: 1) any dollar amount of discretionary budget
authority; 2) any item of new direct spending; or 3) any limited tax benefit. Although the
Constitution expressly authorizes the President to veto a bill under Article I, 7, it is silent on the
subject of unilateral Presidential action that repeals or amends parts of duly enacted statutes as
authorized under the Line Item Veto Act. Constitutional silence should be construed as express
21

prohibition!! (even more limited/narrow than Youngstown) FORMAL APPROACH. If there is to be

a new role for the president in the procedure to determine the final text of a law, such a change
MUST come through the amendment procedures and not by legislation.
CONCURRING (Kennedy): Concentration of power in any single branch is a threat to liberty
separation of powers argument. Statute must be found invalid- Failure of political will does not
justify unconstitutional remedies.
DISSENTING (Breyer): FUNCTIONAL approach. The Line Item Veto may help representative govt
work better Congress cant divide bills in thousands or tens of thousands of separate
appropriation bills that the President has to veto or sign separately. DEFERENTIAL view. Stresses
that Congress & President support line item veto!
*Deferential level of review - we should only strike law down for COMPELLING reasons. 2
arguments for when judiciary should defer:
1) law directly affects President & Congress.
2) statute addresses deeply vexing national problem.

IV.

Non-Delegation Doctrine

V.

The principle that Congress cannot delegate legislative power. It forces a politically accountable
Congress to make the policy choices rather than unelected administrative officials. The height of
Courts enforcement of this doctrine was in the mid 1930s in two decisions that invalidated New
Deal legislation...
A.L.A. Schecter Poultry Corp. v. United States (1935): A corporation was indicted for alleged
conspiracy and violations of a code that prescribed labor standards and other regulations for
industry. The code, created by a business group delegated this authority by a federal law, was
challenged as the product of an unconstitutional delegation of legislative power. H: Congress
cannot delegate to the President legislative power to make whatever laws he thinks are necessary
to achieve an end!
Panama Refining Co. v. Ryan (1935): A business subject to federal industry regulations that were
issued by the President, acting under authority of Congress, sought to enjoin the regulations on
the ground that they were an unconstitutional delegation of Congresss legislative power. H:
Congress cannot delegate its powers to the President or its agencies without providing POLICY
STANDARDS and GUIDANCE for the delegated powers. Here, Congress left the matter to the
President to be dealt with as he pleased.
Schecter and Panama Refining both emphasized that the Presidents discretion must NOT be
unfettered. The two cases have NOT BEEN FOLLOWED since they were decided. Since then, no
federal law has been held to be an impermissible delegation of legislative power. The holdings
have NEVER BEEN OVERRULED but have never been enforced either!
No predicted revival of non-delegation doctrine
Whitman v. American Trucking Assn., Inc. (2001): The Administrator of the EPA was to review and
revise the National Ambient Air Quality Standards. The plaintiff trucking company objected to
such review and revisions as unconstitutional. H: Reversed D.C.s striking down statute.
REASONING (Scalia): Takes FUNCTIONAL approach! Unanimous decision. The Clean Air Act does
not have to set numeric guidelines, and decision-making authority only need be accompanied by
an Intelligible principle to guide the decision-maker.
Critics argue that independent agencies (unofficial 4th branch of govt) have too much authority
already considering the Constitution is completely silent as to their existence (.e.g., prosecutors
decide what cases to prosecute and how they are classified).

Legislative Veto

Only within the last 50 years that legislative veto has come into widespread use. It was invented
as one means of keeping a check on admin. Agencies with the expanding federal govt in response
to the Depression. Congress included in statutes provisions authorizing Congress or one of its
22

VI.

houses or committees to overturn an agencys action by doing something less than adopting a new
law. A typical form of legislative veto provision authorized Congress to overturn an agencys
decision by a resolution of one house of Congress. Legislative vetoes also took the form of
overturning agency rules by resolution of both houses of Congress or even by action of a
congressional committee. Nearly 200 federal laws contained legislative veto provisions.
The demise of the legislative veto; separation of powers. Enormous impact!!
Immigration & Naturalization Service v. Jagdish Rai Chadha (1983): Chadha (P) and others
challenged the constitutionality of a federal statute that purported to authorize one House of
Congress, by resolution, to invalidate the decision of the Attorney General (made under authority
delegated by Congress) to allow a particular deportable illegal immigrant to remain in the US. H:
The federal statute is unconstitutional because it constitutes an exercise of legislative power and is
thus subject to the bicameralism (passage by both houses) and presentment (giving the bill to
President for signature or veto) requirements of Article I of the Constitution. The cumbersome
process is there for a reason!!
REASONING (Burger): Takes FORMAL approach. Such an action it CLEARLY is an exercise of
legislative power, and none of the express constitutional exceptions authorizing one House to act
alone applies (HR can initiate impeachment; Senate can conduct trials following impeachment;
Senate given final unreviewable power for presidential appointments; Senate given unreviewable
power to ratify treaties).
Why? Check on Congresss power & Accountability! This case requires action in conformity with
the express procedures of the Constitutions prescription for legislative action (passage by a
majority of both houses and presentment to the President) separation of powers!
CONCURRING (Powell): This case should have been decided on the NARROWER ground that
Congress assumes its judicial function acting as appellate court in violation of the principle of
separation of powers when it finds that a particular person does not satisfy the statutory criteria
for permanent residence in this country. The Courts broader decision will apparently invalidate
the legislative veto, which is a procedure that has been much used by Congress and one clearly
essential to controlling the delegation of power to administrative agencies.
DISSENTING (White): Takes FUNCTIONAL approach. Questions both of majoritys 2 premises
Congress must now write hundreds of laws specific to every special circumstance that may arise or
abdicate its legislative responsibilities to the executive branch and independent agencies.
Chadha involved a legislative veto of an adjudicatory proceeding. Almost immediately after, the
Court extended its holding to preclude legislative vetoes of agency rules. It is thus clearly
established that if Congress wants to overturn an executive action, anything less than both
bicameralism and presentment is unconstitutional. Congress can control administrative agencies
and overturn agency decisions by STATUTE following these prescribed procedures. Further,
Congress controls the BUDGET of admin agencies and can use this to exercise an important check.
*Just b/c a practice is long-standing, does not mean it is constitutional!!

Checking Administrative Power

Article II, 2 describes the Presidents appointment and removal power. This is another important
check on agencies. The Presidents authority to select members of agencies, subject to
confirmation by the Senate, often directs the conduct of agencies. Also the Presidents power to
remove agency officials is another check. many constitutional issues concerning separation of
powers bc it interferes with Presidents powers to CARRY OUT laws.
Important case that could have easily turned out differently still governing law
Alexia Morrison, Independent Counsel v. Theodore B. Olson (1988): Morrison (P) appealed from a
decision reversing a district court decision upholding the constitutionality of the independentcounsel provisions of the Ethics in Govt Act and denying Olson (D)s motion to quash subpoenas,
contending in part that those provisions were not violative of the Appointments Clause of the
Constitution. The provisions allow for the appointment of an independent counsel to investigate
23

VII.

and prosecute appropriate certain high-ranking govt officials for violations of criminal laws. H:
The independent-counsel provisions did NOT violate the Appointments Clause of the Constitution
Morrison had authority!!
REASONING (Rehnquist): Takes FUNCTIONAL approach we need independent counsel! Should
have power when that officials work is SO central to function of executive power. The counsels
tenure is limited by statute and allows for removal for good cause or removal once the
actions/prosecutions are complete it is HARD to remove. Morrison is 1) subject to removal by a
higher executive branch; 2) restricted in jurisdiction and nature; and 3) limited to authorized duties
(BU T to comply to the extent possible). These characteristics to the office of independent counsel
confirm that Morrison is an inferior and not a principal officer. BUT THIS IS FAR FROM CLEAR!
*As of 1988, no ind. Counsel has ever been removed (weighs in favor of classifying as a principal
officer).
DISSENTING (Scalia): STRICT FORMALISM. The inarguable fact is that the President has sole
discretion in conducting criminal prosecution violates EXECUTIVE power! Doesnt have to be so
central.
The authority for creating an Independent Counsel expired in 1999. After Kenneth Starrs
investigation of Clinton, Congress simply let the Act expire and did not renew the authority for the
creation of one. Some believe this vindication of the views expressed by Scalias dissent, while
others contend that this is a serious mistake.
The Court has imposed one important limit on who may possess the appointment power
Congress cannot give the appointment power to itself or its officers. not to eliminate checks &
balances.
The Removal Power: there is no provision of the Constitution. In general, the President may
remove executive officials unless removal is limited by statute. Congress, by statute, may limit
removal both if it is an office where independence from the President is desirable, and if the law
does not prohibit removal, but rather, limits removal to instances where good cause is shown.
from experience of President Andrew Johnsons impeachment and 5 S. Ct. cases considering
removal power.
If Congress doesnt specify, then President can remove at will. Also allowed to fine a person at will
unless there is a specific situation where that provision should be independent of President.
o SEE: above Morrison case! Dramatic SHIFT from old FORMAL approach to new
FUNCTIONAL approach Ask: Is it really going to interfere with Presidents functionality?
Does it unduly trammel on executive authority?
Court deeply divided between FORMAL and FUNCTIONAL approach.
Themes: preserving Presidents power. 1) Accountability to the people 2) workability
Free Enterprise Fund v. Public Company Accounting to Oversight Board (2010): I: Whether these
separate layers of protection may be combined May the President be restricted in his ability to
remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even
though that inferior officer determines the policy and enforces the laws of the US? H: No (5-4
vote). Such multi-level protection from removal is contrary to Article IIs vesting of the executive
power in the President. The dual-for-cause limitations on the removal of Board members
contravene the Constitutions separation of powers.
REASONING (Roberts): Takes FORMAL approach. Strongly emphasizes at will removal power as
deciding factor if inferior officer. Closer to Scalias dissent!
DISSENTING (Breyer): The Court has looked to function and context, not to bright-line rules. The
majoritys decision to eliminate Layer Two accomplish virtually nothing because a removal
restrictions effect upon presidential power depends not on the presence of a double layer of
for-cause removal, as the majority pretends, but rather on the real world nature of the Presidents
relationship with the Commission.

Checks on the President

24

How can the President be held accountable?

o Informal mechanisms: pressure of public opinion and checks by Congress (budget process)
o Formal mechanisms: 1) Civil Suits and criminal proceedings against the President; 2)
Impeachment
When may the President be Civilly Sued?
o The President has absolute immunity from civil damages liability for all official actions
taken while in office.
Richard Nixon v. A. Ernest Fitzgerald (1982): Fitzgerald (P) was fired from his job in the Air
Force. Allegedly, he was terminated by the President (D) in retaliation for revealing to
Congress information that was embarrassing to the Dept. of Defense.
REASONING (Powell): Unlike other executives (governors, cabinet officers) who have only
qualified immunity, the presidents role in the federal govt is so important, and affects so
many people, that to divert his energies with concerns of private lawsuits would imperil
the effective functioning of govt.
DISSENTING (White): Giving the office of the president absolute immunity places the
president above the law! The majoritys holding essentially gives the president sovereign
immunity and does so as a matter of PUBLIC POLICY and not as a reasoned judicial
decision.
*Prosecuted judges also have absolute immunity. The Court has implied immunity from
Constitutional doctrine nowhere does the Constitution explicitly provide this.
o Immunity from civil damages liability is inapplicable to unofficial conduct!
William Jefferson Clinton v. Paula Corbin Jones (1997): President Clinton (D), who was
sued by Jones following an alleged incident that occurred in 1991 before his election to the
office of President, sought to have all litigation on the matter suspended until after his
term has included. H: The doctrine of separation of powers does not require federal
courts to stay all private actions against the President until he leaves office. Clarified
holding in Fitzgerald!
REASONING (Stevens): Combined rule: President is immune from a lawsuit regardless of
when the lawsuit is brought, when it arises out of OFFICIAL duties carried out WHILE
President is in office! not contracts, marital, torts, etc. Here, P is suing for NON-official
conduct for acts BEFORE President took office. Only 3 sitting Presidents have been sued
for their private actions, and it is unlikely that this decision will result in a deluge of such
litigation.
*This decision means that the Court was not persuaded that they did not want the
President to be distracted from official duties. PP: No person is above the LAW.
o In every case, balancing test of accountability of officials v. each officials responsibilities in
office and ways lawsuit could interfere to the detriment of the people!
Impeachment. The ultimate check on presidential power is impeachment and removal. Article II,
4 limits Impeachment f=for and conviction of Treason, Bribery, or Other High Crimes and
Misdemeanors. Article I, 2 provides the House of Reps with the sole power to Impeach. If there
is an impeachment by the House, then a trial is held in the Senate (Article I, 3).
o Two major unresolved issues concerning the above provisions:
1) What are High Crimes and Misdemeanors? At one end of spectrum is view that these
are limited to acts that violate the criminal law and can be deemed a serious threat to
society. At the opposite is the statement of Gerald Ford: An impeachable offense is
whatever a majority of the House of Reps considers it to be.
2) What Procedures must be followed when there is an impeachment and removal
proceeding? Is it permissible for the Senate to have a committee hear the evidence and
make a recommendation to the entire body or must the Senate sit as a tribunal? Not
addressed in Constitution. There is no definitive answer, and no S. Ct. case addressing
25

VIII.

either. None is likely because S.Ct. has held that challenges to the impeachment and
removal process pose non-justiciable political questions.
*CRIMINAL proceedings have never been addressed!
Historical Experience. There has been three serious efforts to impeach the President, and
two Presidents have been impeached.
1) Andrew Johnson. The House impeached and Johnson avoided removal by one vote in
Senate.
2) Richard Nixon. The House Judiciary Committee vote 3 articles of Impeachment, and
Nixon resigned before the matter could be considered by the entire House.
3) Bill Clinton. Impeached by the House of Reps in 1998, but the Senate did not impeach
him. Clintons testimony before a grand jury later became the basis for a separate
accusation of testimony.

War on Terror

The events of September 11 have led to many govt actions that will raise important difficult
constitutional questions: when may the Executive detain American enemy combatants, and when,
if at all, are military tribunals constitutional?
In June 2004, the S.Ct. decided 3 major cases concerning civil liberties and the war on terrorism.
Two were resolved on non-constitutional grounds. The third:
Hamdi v. Rumsfeld (2004): Hamdi (D) was charged as an enemy combatant and detained by the
US military. He challenged his status and the constitutionality of holding him without formal
charges or proceedings. The Fourth Circuit held that no further hearing was required. H: A U.S.
citizen designated and detained as an enemy combatant has a due process right to challenge the
underlying factual support for that designation before a neutral arbitrator. Narrowly themed
holding! By a 5-4 margin, the Court ruled that there was sufficient legal authority to detain Hamdi,
a US Citizen, as an enemy combatant. The Court also concluded, by an 8-1 margin, that Hamdi
must be accorded due process, including a meaningful factual hearing.
REASONING (OConnor): Engages in balancing test to make conclusion limited to the facts of THIS
case. A citizen has a right to be free from unlawful detention without due process of law, but the
Court must weigh the governmental interest in confining enemy combatants against the individual
liberty rights of the detainee. A state of war is not a blank check for the President when it comes to
the rights of the Nations citizens. The Court cannot detain unless it provides MINIMAL DUE
PROCESS protections.
CONCURRING/DISSENTING (Souter): Judgment of plurality is correct, reasoning is wrong.
Congress did not specifically authorize the imprisonment of individuals and the govt broad
interpretation of the authorization is too broad.
DISSENTING (Scalia): The govt must prosecute for treason or another crime in federal court
UNLESS wartime allows for the enactment of the Suspension Clause (safety valve), but no one
contends that here. Whether Sept. 11 attacks constitute an invasion. And whether they justify
suspension several years later, are questions for Congress. nothing allows for the detention of this
man without due process proceedings. extreme position attacking OConnor
DISSENTING (Thomas): This case is within the federal govts war powers, and Hamdi habeas claim
should fail without necessitating a remand he has not been denied due process because the
President acted within his rights to detain him. strongest view of presidential/executive power.
Only dissenter in 8-1 holding that Hamdi must be accorded factual hearing.
*Different views of separation of powers in all opinions.
Most recent precedent- different views about appropriate role of judiciary in war on terror
Boumediene v. Bush (2008): Lakhdar Boumediene (P) and other Algerian detainees held at
Guantanamo Bay, Cuba, petitioned the Court for a writ of habeas corpus, claiming that the US
govt violated the DP Clause, various statutes, common law, and intl law. The federal appeals
court ruled in favor of the US govt (D). In 2006 Congress passed the Military Commissions Act of
26

2006 (MCA), which withdrew the jurisdiction of federal courts to hear habeas applications from
detainees classified as enemy combatants under the Detainee Treatment Act of 2005. The
detainees argued that the MCA did not apply to their petitions, and if it did, it was unconstitutional
under the Suspension Clause. H:
1) The military Commissions Act of 2006 strips federal courts of jurisdiction over habeas petitions
filed by foreign citizens detained at Guantanamo Bay.
2) Detainees are not barred from seeking habeas or invoking the Suspension Clause simply
because they had been designated as enemy combatants or held at Guantanomo Bay.
3) The Military Commissions Act of 2006 is a violation of the Suspension Clause of the Constitution.
REASONING (Kennedy): 1) The person is not covered by U.S. Constitution regardless of whether
they are.
2) The Suspension Clause applies to Guantanamo, despite the fact that the US does not claim
sovereignty over the place of detention applies functional approach. US has de facto
sovereignty!
3) Because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for
the habeas writ, the MCA operates as an unconstitutional suspension of the writ.
Where a person is detained by executive order, rather than, say, after being tried and convicted in a
court, the need for collateral review is most pressing. Collateral review separate proceeding
under writ (added check). PP: No person is below the law either!
3 factual distinctions from Hamdi: 1) non citizens; 2) detained in Cuba; 3) Hamdi predated both
MCA and DTA. *SIMILAR to Hamdi facts, but that was an extremely narrow holding!
CONCURRING (Souter): 1) The jurisdictional question In this case would be answered in the same
way as purely constitutional cases. 2) The prisoners involved in this case have been held at
Guantanamo for 6 years, without habeas scrutiny, and while the military should handle such cases
within some reasonable amount of time, it was appropriate for the court to step in after military
failed after 6 years. *obligation of courts to provide habeas review.
DISSENTING (Roberts):The majoritys opinion is not about detainees, but control of FEDERAL
policy regarding enemy combatants. Uses term judicial supremacy
DISSENTING (Scalia): The writ of habeas corpus does not, and never has, run in favor of aliens
abroad. The Suspension Clause has no application, and the courts intervention is beyond their
power.
*Both Dissents argue that majority engaged in bait & switch asked Congress for guidance but
now rejecting statute. Takes FORMAL approach Cuba had formal sovereignty of Cuba, and govt
had argued that this ends the inquiry.
**Separation of powers upset because striking actions by both other branches of govt! (legislative
MCA, executive detaining combatants).
Boumediene timeline. Bait & switch back & forth between Congress & exec branch.
2004 Court issues decision in Rasul, holding that federal habeas statute applies to petitioners
(constitutional issue was not raised)
2005 Congress/President enacted the DTA to amend habeas statute to exclude Gmo detainees.
2006- Congress/President enact the MCA to amend habeas statute so that its exclusion of Gmo
detainees does apply retroactively to petitioners.
2008- Court issues Boumediene, holding that MCA unconstitutionally suspends petitioners habeas
corpus rights!
Belief that the 2008 decision was only theoretical justices outsourced the issue to the US Court
of Appeals for the DC Circuit, where the review of the govts evidence has been anything but
meaningful.

Federalism Limits on State Regulatory Power

27

Preemption of State and Local Laws. Article IV of the Constitution contains the Supremacy
Clause, which provides that the Constitution, and laws and treaties made pursuant to it, are the
supreme law of the land. Federal law trumps inconsistent state law.
There is no clear rule for deciding whether a state or local law should be invalidated on
preemption grounds. Traditionally, two major situations where pre-emption occurs:
1) Federal law expressly exempts state or local law.
2) Pre-emption is implied by a clear congressional intent to preempt state or local law.
*In both express and implied preemption, the issue is discerning congressional intent. But
Congresss intent is rarely expressed or clear. The Court is often left to make guesses about
purpose based on fragments of statutory language, random statements in the legislative history,
and the degree of detail of the federal regulation.
Express Preemption: occurs when there is explicitly preemptive language.
o The clearest way for Congress to make federal law exclusive in a field is to expressly
preclude state or local regulation in the area. clauses that expressly pre-empt state or
local laws.
o Riegel v. Medtronic (2008): concerned the scope of an express preemption provision.
Medical Devices Amendments of 1976 preempts states from imposing requirements
different from federal law after the FDA approves a medical device. H: This pre-empts
state tort liability against manufacturers for devices approved by the FDA. Tort liability,
like regulation, changes behavior and essentially creates requirement.
DISSENTING (Ginsburg): sole dissenter, stressed that there should be a presumption
against preemption.
Implied Preemption: clear congressional intent to preempt state or local law. 3 types
o Conflicts Preemption. If a federal and a state law are mutually exclusively, so that a
person cannot comply with both, the state law is deemed pre-empted. Determining
whether laws actually conflict depends entirely on the intent of the federal govt.
o Preemption Because State Law Impedes the Achievement of a Federal Objective.
Preemption also can be found if a state or local law is deemed to impede the achievement
of a federal objective. In applying this, court must determine the federal objective and
decide the point at which state regulation unduly interferes with that goal.
o Preemption Because Federal Law Occupies the Field. Even though federal law does not
expressly exempt state law, preemption will be found if there is a clear congressional
intent to have the federal law wholly occupy a particular area of law. (Most important
example immigration law!)
Ultimately, preemption doctrines are about allocating governing authority between federal and
state govts.
o Broad view of preemption leaves less room for governing by state and local govts.
historic powers of States not to be supersede by the Federal Act without the clear and
manifest purpose of Congress
o Narrow vie of preemption minimizes the reach of federal law and risks undermining the
federal objectives. states rights!
The Dormant Commerce Clause. Not a clause- a doctrine! Implicit limit. It is a double-edged
sword that both LIMITS & PROMOTES state autonomy (protects states from overreaching each
other)
The principle that state and local laws are unconstitutional if they place an undue burden on
interstate commerce. The S.Ct. has inferred this from the grant of power to Congress in Article I,
8 to regulate commerce among the states. The doctrine is DORMANT because the Commerce
Clause, by its own force and without national legislation, put it into the power of the Court to place
limits on the state authority.
28

The Commerce Clause has two distinct functions: 1) An authorization for congressional actions. 2)
Limiting state and local regulation dormant or negative CC.
Why a Dormant Commerce Clause? CONGRESS always has the authority under its commerce
power to preempt state or local regulation of commerce under the Supremacy Clause. However,
in the absence of congressional action, the judiciary declares a state or local law unconstitutional if
they place an undue burden on interstate commerce under the Dormant Commerce Clause.
Arguments for Dormant Commerce Clause.
o Historical: framers intended to prevent state laws that interfered with interstate
commerce.
o Economic: economy is better off if state and local laws impeding interstate commerce are
invalidated.
o Political: states and their citizens should not be harmed by laws in order states where they
lack political representation. McCulloch v. Maryland part of the reason S.Ct invalidated
Marylands tax on Bank of US
Arguments Against Dormant Commerce Clause.
o Strongest criticism by J. Thomas: The negative CC has no basis in the text of the
Constitution, makes little sense, and has proved virtually unworkable in the application.
Should rely on Congress to invalidate state laws. Congress has pre-emption power,
inappropriate for court to independently do so and court is usurping Congresss power.
BUT inefficient for Congress to invalidate every law. They may not even know about it!
o THEORY 1: The Court has long repudiated the notion that CC operates as an exclusive
grant of power to Congress.
o THEORY 2: Pre-emption by silence rationale has been rejected by the Court in virtually
every analogous area of law. Treating unreacted congressional intent as if it were law
would be constitutionally dubious.
o Art. I, 10 Imports/Exports fact that it regulates commerce implies that there are types
of interstate commerce that CC does NOT violate.
o Separation of Powers task of reviewing state laws should be done by Congress
o Federalism minimize instances where state/local laws are invalidated
DCC Before 1938. Can be traced back to Gibbons v. Ogden. J. Marshall broadly defined the scope
of Congresss power under the CC, and for considering the CC as an independent limit on state
power even where Congress has not acted. Marshall drew a distinction between a states exercise
of its police power and a state exercise the federal power over commerce. Court ruled that state
law was preempted and didnt reach DCC issue because of constitutional avoidance!
Tests for the Dormant Commerce Clause.
o Gibbons v. Ogden police power/commerce test
o Cooley v. Board of Wardens local/national subject matter test
o Modern approach unlike 19th century approaches, not based on rigid categories, but
rather on courts balancing the benefits of a law against the burdens that it imposes on
interstate commerce benefits to in-state interests v. costs to out-of-state interests.
Court has never expressly overruled the earlier tests and invokes in explaining a particular
result sometimes.
*This approach is functional/flexible but also arbitrary & inconsistent!
o Discriminatory approach in recent years, some justices have objected to balancing test
and argued in favor of upholding all state laws that are deemed non-discriminatory.
Instead of the formal, categorical approaches and the balancing test, Scalia wanted to
eliminate DCC review where state is not discriminating against out-of-staters he thinks
its wrong but because of stare decisis, wants to cut back on DCC. They raise the question
of whether there should be any dormant CC review when a state law is deemed NONdiscriminatory.
29

Crucial initial inquiry in DCC Cases: determining Whether a Law is Discriminatory. Balancing
prescribed by the S.Ct. varies depending upon whether the state/local law discriminates.
o If a state is discriminating against out-of-staters strong presumption against the law
and it will be upheld only if it is necessary to achieve an important purpose strict
scrutiny!! Less discriminatory alternatives test is hard to satisfy.
Facially discriminatory laws many cases have dealt with attempts by state/local
govts to conserve natural resources for use by their own residents.
Facially neutral laws can be found to be discriminatory if motivated by a desire
to help in-staters at the expense of out-of-staters or might have a discriminatory
impact against those from other states (i.e., discriminatory PURPOSE or EFFECT).
different from EP Clause analysis!!!
o If the law is deemed non-discriminatory presumption is in favor of upholding the law,
and the law will be invalidated only if it is shown that the laws burdens on interstate
commerce outweigh its benefits. almost automatically upheld
Exceptions to Dormant Commerce Clause.
o Congressional Approval. Even if clearly unconstitutional, discriminatory state law will be
allowed if approved by Congress because Congress has plenary power to regulate
commerce. Of course, if Congress has acted, then the commerce power is no longer
dormant. opposite of express preemption!
*The law can still be challenged under other constitutional provisions, such as Equal
Protection or the Privileges and Immunities Clause!!
o Market Participant Exception. A state may favor its own citizens in receiving benefits
from govt programs or in dealing with govt owned businesses. If the state is literally a
participant in the market, and not a regulator, then DCC does not apply. COMPLETE
DEFENSE!
Hughes v. Alexandria Scrap Corp.: Court said that State was a market participants
as it was purchasing the cars, and therefore its discriminatory actions did not
violate the dormant CC. very controversial, only kicks in if state is acting in
BUSINESS CAPACITY
Privileges and Immunities Clause
Another provision that limits state and local regulation implicitly Article IV, 2 S.Ct has
interpreted as limiting the ability of a state to discriminate against out-of-staters with regard to:
o fundamental constitutional rights
but more likely to be brought under the actual Amendment, etc.
o important economic activities.
Most cases under this Clause involve challenges to state and local laws that
discriminate against out-of-staters with regard to their ability to earn a livelihood
such discrimination will only be allowed if it is substantially related to achieving
a substantial state interest.
When challenge is brought under the P&I Clause:
1) Has the state discriminated against out-of-staters with regards to privileges and immunities that
it accords its own citizens?
2) If there is such discrimination, is there sufficient justification for the discrimination?
*The P&I Clause is limited to US Citizens. No corporations or aliens!
Dormant CC and P&I Clause OVERLAP, but there are KEY DIFFERENCES:
1) P&I Clause can ONLY be used if there is discrimination against out of staters! DCC can be used
to challenge state and local laws that burden interstate commerce regardless of whether they
discriminate. (But under DCC, laws that discriminate are much more likely to be invalidated!)
2) Corporations and aliens can sue under DCC.
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3) Two exceptions to DCC that dont apply to P&I Clause. (but DCC is also broader in some
respects)

The Structure of the Constitutions Protection of Civil Rights and Liberties

I.

The Application of the Bill of Rights to the States

The text of the Constitution, apart from the Bill of Rights, contain few provisions concerning
individual liberties. These provisions (habeas corpus, bill of attainder, etc) are minor compared
with the protection of liberties found in the Bill of Rights. The 7 Articles of the Constitution are
primarily about the structure of govt and not individual rights.
The Bill of Rights is the first 10 Amendments to the Constitution. In part, the framers thought than
enumeration of rights was unnecessary in that they created a govt with limited powers and thus
without the authority to violate basic liberties. In response to the demand for additional
constitutional protection of individual as well as states rights, the first 10 amendments were
proposed and ratified. The first 8 amendments detail protection of individual rights.
The Bill of Rights does not directly protect individuals from local/state govts!
Barron v. Mayor and City Council of Baltimore (1833): Barron (P) claimed that the City (D) made
his wharf useless by diverting the streams during its construction work. P claimed that the action
violated the Fifth Amendment guarantee that property will not be taken without just
compensation. H: The amendments to the Constitution were intended as limitations solely on the
exercise of power by the U.S. government and are not applicable to the legislation of the states.
REASONING (Marshall): Makes historical argument on framers intent and structural argument
the people and each state established their own constitution. These amendments contain no
expression indicating an intention to apply them to the state governments. STILL GOOD LAW!
Slaughterhouse Cases (1872): Louisiana created a 25-year slaughterhouse monopoly to which
several butchers who were not included objected. P challenged on the grounds that it violated the
13th Amendment ban on involuntary servitude and 14th Amendment protections. H: The 14th
Amendment protects the privileges and immunities of national, not state, citizenship, (ONLY
good law until VERY recently!!!) and neither the Equal Protection, Due Process, nor Privileges
and Immunities Clauses of that Amendment may be used to interfere with state control of the
privileges and immunities of state citizenship.
REASONING: The underlying purpose of all three of the post-Civil War amendment was to
eliminate the remnants of African slavery, not to effect any fundamental change in the relations of
the govt. The 14th Amendment was adopted to assure only that states would not abridge the
privileges or immunities of citizens of the United States. Similarly, the Equal Protection and Due
Process Clauses of that Amendment were drawn to protect former slaves from federal rights. No
interpretation of this amendment (or the 13th Amendment, which is an even clearer case) may be
used to prevent the State of Louisiana from exercising its police power here, to promote public
health in slaughterhouses. Right to travel?!!
DISSENTING: Views the 14th Amendment as protection for all citizens of the fundamental rights of
free govt from abridgment by the states.
The Effect of the Slaughterhouse decision was to essentially render the 14th Amendment P&I
Clause ineffectual as a means of protecting individual rights from state abridgment. The S. Ct.s
narrow interpretation of the DP Clause was overruled relatively quickly (wrongly decided?)
State statutes may expand individual rights as a matter of STATE law but Congress may not expand
individual rights as a matter of FEDERAL law US Constitution does put a FLOOR but does not
put a CEILING to our rights (can add to protections!!!)
First time in American history a state law was invalidated under the P&I Clause
Saenz v. Roe (1999): When California (D) discriminated against citizens who had resided in the
state for less than one year in distributing welfare benefits, the state statute was challenged and
31

held to be unconstitutional. H: Durational residency requirements violate the fundamental right to

travel by denying a newly arrived citizens the same privileges and immunities enjoyed by other
citizens in the same state, and are therefore subject to strict liability.
REASONING (Stevens): As one of the few fundamental rights identified by the Court in the
Slaughterhouse Cases, the right to travel requires strict judicial scrutiny when state laws impose
burdens upon it.
*Only 1999, only once in the 130 years since the ratification of the 14th amendment has a law been
declared unconstitutional as violating the P&I Clause, and that case was overruled 5 years later.

II.

Incorporation

Because the application of the Bill of Rights could not be through the P or I Clause, the S.Ct.
suggested an alternate approach, finding that at least some of the provisions are part of the liberty
protected from state interference by the Due Process Clause of the 14th Amendment.
The first time the S.Ct. expressly discussed applying the Bill of Rights to states through the process
of incorporation (form of substantive Due Process)
Twining v. New Jersey (1908): Twining (D) was convicted in NJ (P) of fraud after he failed to testify
on his behalf. NJ did not include in its constitution a right against compelled self-incrimination (5th
Amendment). D challenged his conviction on the ground that the 14th Amendment applied this
right to the States. H: The 14th Amendment does not incorporate provisions of the Bill of Rights
that guarantee the right against self-incrimination.
REASONING: Adopted SELECTIVE approach. Dictum recognizes that the right MIGHT be
incorporated into 14th amendment and becomes foundation for current Inc. Doctrine: It is possible
that some of the personal rights safeguarded by the first 8 Amendments against national action
may also be safeguarded against state action, because a denial of them would be a denial of due
process of law.
The Debate Over Incorporation. For many years, major debate raged among justices over which
liberties are safeguarded
o Total incorporation: believed that all of the Bill of Rights should be deemed to be
included in the DP Clause of the 14th Amendment (J. Black, J. Douglas)
REASONS: states shouldnt be able to be experimenting with fundamental rights;
history & purpose of 14th Amendment; constrains judicial discretion
o Selective Incorporation: believed that only some of the Bill of Rights were sufficiently
fundamental to apply to state and local govts.
REASONS: federalism & states rights; room for judicial discretion
Duncan v. Louisiana (1968): Louisianas constitution granted jury trials only in cases in which
capital punishment or imprisonment at hard labor may be granted. H: The right to a jury trial in
serious criminal cases punishable by at least 2 years in prison is a fundamental right that must be
recognized by the states as part of their obligation to extend due process of law to all persons
within their jurisdiction.
CONCURRING (Black): Both total and selective incorporation of the Bill of Rights are to be
preferred to assigning no settled meaning to the term due process as this will shift from time to
time in accordance with changing theories. The selective incorporation process, if used properly,
does limit the Supreme Court in the 14th Amendment field to specific Bill of Rights protections only
and keeps judges from roaming at will in their own notions of what policies outside the Bill of
Rights are desirable and what are not. Black LOST battle but won the war!
The Bill of Rights still technically applies only to the federal govt. Whenever a case involves a
state or local violation of a Bill of Rights provision, to be precise, it involves that provision as
applied to the states through the Due Process Claus of the 14th Amendment.
McDonald v. City of Chicago (2010): re-examined DC v. Heller. H: 2nd Amendment is incorporated
in the 14th Amendments Due Process Clause!
REASONING (Alito): No reason to change the Slaughterhouse holding on P&I bc it is established
32

that the 14th Amendment protections of individual rights against state infringement has been
analyzed using DP Clause. Self-defense is a basic right, and in Heller, we held that self-defense is
the central component of the 2nd Amendment right. Argues using HISTORY & TRADITION.
CONCURRING (Thomas): Precedent should not preclude using the P&I Clause for interpreting what
rights are incorporated in the 14th amendment. The 2nd Amendment is applicable to the states as
it is incorporated through the P&I Clause.
DISSENTING (Stevens): 1) Firearms are ambivalently related to liberty. 2) The gun possession is a
right different from other liberties under DP Clause. 3) Many other advanced democracies have
policies that suggest the right to possess guns is not necessary to ordered liberty.
*The judges all argue that there is a very serious argument that Slaughterhouse misinterpreted the
P&I Clause. In practical terms, they also agree that overruling Slaughterhouse would have little
impact!!

III.

The State Action Doctrine

The Constitutions protections of individual liberties and its requirements for equal protection
apply only to the government at all levels and the actions of govt officers at all levels. Private
conduct generally does not have to comply with the Constitution. Civil Rights Case generally
regarded as the initial articulation of the state action doctrine.
The blanket rule that the Constitution only applies to the govt must be qualified in a few respects:
o The 13th Amendment to the Constitution is the one provision that directly regulates
private conduct by forbidding people from being or owning slaves.
o Statutes, both federal and state, can apply constitutional norms to private conduct govt
can enact laws that require that private conduct meets the same standards that the
Constitution requires of the govt. (E.g., Civil Rights Act of 1964 prohibits private
discrimination by private employers)
There are EXCEPTIONS to the state action requirement, where private actions must comply with
Constitution!
o The Public Functions Exception: Private entity must comply with the Constitution if it is
performing a task that has been traditionally exclusively done by the govt. (E.g., private
contractors carrying out military functions, prisons, sanitation).
o The Entanglement Exception: Private conduct must comply with the Constitution if the
govt has authorized, encouraged, or facilitated the unconstitutional conduct. (Generally
regulation in FOUR areas: 1) judicial and law enforcement actions; 2) govt licensing and
regulation; 3) govt subsidies; 4) voter initiatives permitting discrimination.
o Cases concerning these exceptions have been called a conceptual disaster area.
Explanations for this inconsistency: it reflects inherent problems with state action (govt
always has the power to regulate private behavior and there never can be a clear line for
when the failure to do so constitutes a state action; govt is involved in almost every
activity so it is near impossible to draw a meaningful line as to the point where
involvement is great enough.)
o Critics also say that judges invoke the doctrine to achieve results they want.
o Arguably new Entwinement Exception, which is broader..
Brentwood Academy v. Tennessee Secondary School Athletic Assn. (2001): The
nongovernmental Tennessee Secondary School Athletic Association (TSSAA) (D) penalized
a private secondary school in Tennessee, Brentwood Academy (P), for violating Ds rules
on recruiting athletes. The school sued D in federal court, arguing in part that Ds
penalties constituted state action 1st Amendment incorporated under the 5th and 14th
Amendments. H: A nongovernmental statewide associations actions constitute state
action if state officials are pervasively entwined in the structure of the association.
REASONING (Souter): The TSSAA simply would not exist without the control and day-today efforts of public school officials in the state. Says a normative judgment no
33

agreed rule, BALANCING TEST! We say that state action may be found if, though only if,
there is such a close nexus between the State and the challenged action that seemingly
private behavior may be fairly treated as that of the State itself.
DISSENTING (Thomas): Uses same test whether an action can fairly be attributed to the
state. D fails all known tests for state action it has NOT performed a public function; it
was not created, coerced or encouraged by the state; and it has not acted in a symbiotic
relationship with the state. The Courts new entwinement rationale thus EXTENDS the
state action doctrine, and it extends the doctrine too far.
*Dont be surprised if this case is overturned.
Shopping malls are not treated as state actors anymore no rights at the mall!

Substantive Due Process

I.

The rise of Lochnerism

Some constitutional rights can be grouped together under the category of economic liberties.
Economic liberties generally refer to constitutional rights concerning the ability to enter into and
enforce contracts; to pursue a trade or profession; and to acquire, possess and convey property.
Contracts Clause, Takings Clause, at times the Court has also used the DP Clause to protect
economic liberties
The key normative issue concerns the appropriate degree of judicial protection for economic
liberties. The S.Cts protection of economic liberties has varied enormously over time. In the early
19th Century, the Court invoked natural law principles to protect property rights. Throughout the
19th century, the Court aggressively used the Contracts Clause to limit the ability of states to
interfere with existing contractual obligations.
Beginning in the late 19th century and continuing until 1937 (SECOND ERA), the Court found that
freedom of contract was a basic right under the liberty and property provisions of the DP Clause.
During this period, the Court aggressively protected economic rights under the DP Clause, and the
Contracts Clause was not used much. during this same era, the Court used FEDERALISM to limit
the ability of Congress to regulate the economy. The Court narrowly defined the scope of
Congresss powers under the Commerce Clause and also found that the 10th Amendment reserved
a zone of authority exclusively to the states. SAME PHILOSOPHY: STRONG COMMITMENT TO
LAISSEZ-FAIRE ECONOMY AND PROTECTING BUSINESS FROM GOVT REGULATIONS.
TYPES OF DUE PROCESS. Interpreted to provide 2 different types of protection:
o Procedural Due Process: procedures that govt must follow when it takes away persons
life, liberty, or property e.g., what kind of notice and what type of hearing govt must
provide.
o Substantive Due Process: whether the govt has adequate reason for taking away a
persons life, liberty or property e.g., when a right under the DP Clause is deemed
fundamental by the S.C.t, the govt must prove that its action is necessary to achieve a
compelling purpose. Over the course of American history, primarily used in 2 areas
Economic Substantive Due Process: The focus on the Courts interpretation of the
word liberty in the DP Clause to protect freedom of contract as a fundamental
right. Since 1937, the Courts tremendous reluctance to use economic substantive
due process has been paralleled by a general unwillingness to safeguard economic
liberties. (Slaughterhouse S.Ct. rejected first attempts to use DP Clause to
protect economic rights from govt interference)
Safeguarding Privacy.
Lochner v. New York (1905): A state labor law prohibited employment in bakeries for more than
60 hours a week or more than 10 hours a day. Lochner (D) permitted an employee in his bakery to
work over 60 hours in one week. H: State law invalidated! To be a fair, reasonable, and
34

appropriate use of a states police power, an act must have a direct relation, as a means to an end,
to an appropriate and legitimate state objective.
REASONING: Says not acting as a superlegislature, stresses need for limits on govt regulation. In
this case, there is NO reasonable foundation for holding the act to be necessary to the health of
the public or bakery officials. Statutes such as this one are mere meddlesome interferences with
the rights of the individual. Both employers and employees freedom to contract are affected!
sounds MUCH less deferential in reasoning, actually conveys strict level of scrutiny. Statutes of the
nature of that under review, limiting the hours in which grown and intelligent men may labor to
earn their living, are mere meddlesome interferences with the rights of the individual, and they are
not saved from condemnation by the claim that they are passed in the exercise of the police power
and upon the subject of the health of the individual whose rights are interfered with, unless there
be some fair ground, reasonable in and of itself, to say that there is material danger to the public
health, or to the health of the employees, if the hours of labor are not curtailed. courts
PRESUMING unconstitutionality here! *stated level of scrutiny v. applied level of scrutiny
DISSENTING (Holmes): The word liberty in the 14th amendment should not invalidate a statute
unless it can be said that a reasonable person would say that the statute infringes fundamental
principles of our people and the law. A reasonable person might not think this statute invalid.
DISSENTING (Harlan): Whether or not this be wise legislation is not a question for this Court. It is
impossible to say that there is not a substantial or real relation between the statute and the states
legitimate goals. This decision brings under the courts supervision matters that supposedly
belonged to state legislatures.
MODERN CONSENSUS: Lochner unfairly assumed that bakers could protect their health/welfare
on their own!
Lochner announced 3 themes that were followed until 1937
1) Freedom of contract was a right protected by DP Clauses of 5th and 14th Amendments
2) Govt could interfere with freedom of contract only to serve a valid police purpose of protecting
public health, public safety, or public morals strict judicial scrutiny of govt ENDS
3) The judiciary would carefully scrutinize legislation to ensure that it truly served such a police
purpose (strict judicial scrutiny of govt MEANS) actually necessary, must be least restrictive
means (see Weaver)
o Almost 200 state laws declared unconstitutional as violating the DP Clause of the 14th
Amendment as interfering with freedom of contract during this period! The Court also
upheld many state/federal economic regulations as sufficiently related to valid police
purpose.
Prime example of courts paternalism during Lochner era, 3 years after Lochner
Muller v. Oregon (1908): Muller (D) was convicted of violating a state law that prohibited
employers from requiring women to work more than 10 hours a day. He appealed the conviction
on the ground that it deprived him of the freedom to contract under the 14th Amendment. H: A
state law that prohibits employers from requiring women to work more than 10 hours a day does
NOT violate the freedom to contract guaranteed by the 14th Amendment. One of the few cases
that upheld LABOR law viewed as progressive. Talks about womens physical strength and
compares them to minors.
*Louis Brandeiss Brandeis Brief documented social science data showing that womens
reproductive health required limiting non-reproductive work. blind spots
MODERN CONSENSUS: Muller unfairly assumed that women workers could not protect their
health/welfare on their own.
Distinctions between Lochner and Muller:
1) No mature, mentally competent adults should be treated as inherently in need of govt
protection (as young children do) because of who they ARE.

35

II.

2) In certain circumstances, ALL mentally competent adults can receive some govt protection b/c
of certain extrinsic circumstances that affect them.
Conventional wisdom that Lochner was clearly wrong consumer protection legislation:
Weaver v. Palmer Bros. Co (1926): A Pennsylvania law prohibited the use of shoddy in
comfortables. Palmer (P), a manufacturer, used shoddy in the comfortable it sold in Pennsylvania,
and sued to enjoin enforcement of the law on the ground that it violated due process. H: A state
law that prohibits the use of a certain fill material in bedding violates the DPC.
REASONING: Court concerned that legislature was redistributing bargaining power. Prohibition of
the use of shoddy does not protect public health (compelling govt purpose under strict scrutiny!)
If govt could accomplish this with means that are less restrictive/drastic, it MUST. Not REALLY
necessary!
DISSENTING (Holmes): Legislature had convincing reasons and should be given deference in its
determination that disease is likely to be spread by use of unsterilized shoddy.
The ghost of Lochner: how important the case continues to be. Even though Lochner itself has not
been revived, it is the very fact that it hasnt is why it continues to be so important! Courts have
struggled to develop a model of substantive due process review while avoiding pitfalls of
Lochnerism. Justices constantly bringing up demons of Lochnerism, and Justices who support it
are constantly striving to distinguish it! (No justice in modern Ct has DEFENDED Lochner. See:
plurality opinion of Moore v. City of East Cleveland)
Criticisms of Lochner Era cases:
o STRUCTURAL: involve judicial activism in enforcing unenumerated constitutional rights
under DP Clause, reading INTO constitution. both economic and modern substantive
DP would be rejected under this critique.
Response: to have a vigorous judicial reading of such open language is consistent
with special role of federal courts!
o Involve specific judicial activism in enforcing the wrong unenumerate rights! Freedom of K
is not a FUNDAMENTAL right. only economic substantive DP would be problematic
here
Response: right to practice a trade is SO central to our sense of self that it could be
a PERSONAL and not just a property right. Form of oppression!

The fall of Lochnerism

By mid 1930s, enormous pressures mounting for the Court to abandon the laissez-faire philosophy
of the Lochner era. The Depression created a widespread perception that govt economic
regulations were essential. Legal realists argued that the law reflected political choices and using
freedom of K to invalidate state laws was a political choice favoring employers!
The Court signaled the end of economic substantive due process:
West Coast Hotel Co. v. Parrish (1937): Washington state had a law that set the minimum wage
for women. Parrish (P), a woman employed by West Coast Hotel Co. (D) brought suit to recover
the difference between the wages paid to her and the minimum wages set by the state. D
challenged the minimum wage law as violating the 14th amendment. H: State minimum wage for
women does not violate the 14th Amendments due process guarantees. A WHOLESALE
REJECTION of 3 major Lochner themes in economic contexts!
REASONING (Hughes): Different from paternalism rationale in Muller. Women here are VICTIMS
of discrimination, not inherent reason. The safeguarding of womens health and their protection
from unscrupulous employers is in the public interest. Legislature entitled to judgment!
Deferential post-Lochner
United States v. Carolene Products Co. (1938): Carolene Products (D) was attempting to have the
Filled Milk Act declared unconstitutional. H: In cases challenging the constitutionality of
legislation affecting ordinary commercial transactions, the S.Ct. will apply the rational basis test,
which means that the person challenging the legislation has the burden of showing that a rational
36

III.

basis does not exist. so deferential, no wonder EVERY single law has passed under freedom of
K/DP Clause since 1937! Challenger has burden of proof, needs to show there is not ANY
legitimate basis for the law.
o FOOTNOTE 4. Proclaims a need for judicial deference to govt economic regulations, with
more aggressive judicial review reserved for cases involving fundamental rights and
Discrete and insular minorities. Distinguished IMPLIED liberty from SPECIFIC limits on
govt power from BOR. Recognizes that some groups may not have access to political
process and are systematically excluded so not fully protected - stricter level of scrutiny.
Williamson v. Lee Optical of Oklahama (1955): A state law prohibited any person from fitting or
duplicating lenses without a prescription from an ophthalmologist or optometrist. It also
prohibited soliciting the sale of frames and the renting of space in a retail store to any person
purporting to do eye examination. Lower court held that there was no rational basis for this lawkind of case that Lochner would have struck down & strictly scrutinized. H: S.Ct. REVERSES and
LOWERS level of scrutiny one notch more!! The DPC will no longer be used to strike down state
laws regulating business and industrial conditions because they may be unwise, improvident, or
out of harmony with a particular school of thought. People most resort to the POLLS, not the
courts!
*SPECULATIVE reasoning on what legislature concluded.
Several other cases also reveal how unlike it is that any economic regulation will be found to
violate DP.
o Ferguson v. Skrupa: It is now well settled that States have power to legislate against what
are found to be injurious practices in their internal and commercial and business affairs, so
long as their laws do not run afoul of some specific federal constitutional prohibition, or
some valid federal law. J. Black

Introduction to Fundamental Rights

S.Ct. has held that some liberties are so important that they are deemed to be fundamental
rights and that generally the govt cannot infringe them unless STRICT SCRUTINY is met the
govts action must be necessary (narrowly tailored) to achieve a compelling purpose.
Rights include: protecting family autonomy, procreation, sexual activity and sexual orientation,
medical care decision making, travel, voting, and access to the courts trigger heightened
scrutiny.
o Most claims of rights under EP or DP only receive MINIMAL JUDICIAL SCRUTINY the
govts action has to be shown to be rationally related to a legitimate govt purpose
(rational basis test)
Relatively little depends on whether the Court uses DP or EP as the basis for protecting a
fundamental right. Under either provision, the Court must decide whether a claimed liberty is
sufficiently important to be regarded as fundamental. strict scrutiny is generally used
o If a right is safeguarded under DUE PROCESS, the constitutional issue is whether the govt
interference is justified by a sufficient purpose.
o If a right is protected under EQUAL PROTECTION, the issue is whether the govts
discrimination as to who can exercise the right is justified by a sufficient purpose.
Modern Substantive Due Process: more specific PRIVACY rights. constitutional privacy (different
from data privacy) = freedom of CHOICE.
2/3 Themes that carry into Modern SDP cases:
o Liberty Prong protected unenumerated right carried out in modified fashion; prong
does NOT protect liberty of contact but other unenumerated rights (choice/autonomy)
o Court strictly scrutinized purpose/end*
o Means and Connections of that Challenge*
*completely unchanged in substantive DP context.
37

Framework for Analyzing Fundamental Rights

1. Is there a fundamental right?
o Originalists take the position that fundamental rights are limited to those liberties
explicitly stated in the text or clearly intended by the framers.
o Non-originalists is the view that it is permissible for the Court to protect
fundamental rights that are not enumerated in the Constitution or intended by the
framers.
o Moderate originalism is the view that the judiciary should implement the framers
general intent but not necessarily their specific views.
o At times, the Court often has looked to history and tradition in deciding what
rights not mentioned in the text are fundamental S.Ct. has said that
fundamental rights include those liberties that are deeply rooted in this Nations
history and tradition. how broadly/narrowly you read past precedents on
pertinent history/tradition
o It is important how the Court DESCRIBES the right (BROAD v. SPECIFIC). The more
specific, the less likely it is to be fundamental. Usually outcome determinative, bc
if the right is fundamental, SS is applied and almost always automatically
unconstitutional. (See: 3 cases struck down, Michael H. upheld)
2. Is the constitutional right infringed? No doubt that a constitutional right is infringed and
the govts action must be justified when the exercise of the right is prohibited. The S.Ct.
has said that in evaluating whether there is a violation of a right, it considers the
directness and substantiality of the interference.
3. Is there a sufficient justification for the govts infringement of a right?
o Fundamental right/SS govt must present a compelling interest to justify
infringement
Govt has burden of persuading the Court that a truly vital interest is
served
NOT difficult to prove that a law was DESIGNED to promote compelling
purpose
o Not fundamental/rational basis govt must only present a legitimate purpose
4. Is the means sufficiently related to the purpose?
o Fundamental right/SS govt must show that the law is NECESSARY to achieve the
objective. This requires that the govt prove that it could not attain the goal through any
means less restrictive than the right!!
Govt has burden of proving that no other alternative, less intrusive of the
right, can work.
Much harder to prove how narrowly tailored the law is. Usually fails this
prong!
o Not fundamental/rational basis govt only has to show a reasonable way to achieve the
goal not required to use the least restrictive alternative.
*Few cases with huge disconnect between 3 and 4.
The FIRST time the S.Ct. recognized the right to marry as a fundamental right: FREEDOM TO
CHOOSE ONES SPOUSE.
Loving v. Virginia (1967): Loving (D) a white man, and Jeter (D), a black woman, both Virginia
residents, were married in D.C. When they returned to Virginia, they were indicted for violating
the states ban on interracial marriage. H: A state law restricting the freedom to marry solely
because of racial classifications violate the EP Clause. At the very least, the EP Clause demands
that racial classifications, especially suspect in criminal statutes, be subject to the most rigid
scrutiny.

38

FREEDOM TO CHOOSE ONES SPOUSE- continued

Zablocki v. Redhail (1978): Redhail (P) brought this action challenging the constitutional validity of
a Wisconsin statute that provides that members of a certain class of Wisconsin residents may not
marry without first obtaining a court order granting permission to marry. H: When a statutory
classification significantly interferes with a fundamental right, it cannot be upheld unless it is
supported by sufficiently important state interests and is closely tailored to effectuate only those
interests. By reaffirming the fundamental right to marry, we do not mean to suggest that every
state regulation that relates in any way to the incidents of or prerequisites for marriage must be
subject to rigorous scrutiny.
Stanley v. Illinois (1972): Unwed father seeking custody of children: Court says there is a
FUNDAMENTAL RIGHT and restrictions are unconstitutional! Court held that the purpose of
protecting children from being raised by unfit parents WAS sufficiently compelling, BUT that this
particular view was not NECESSARY and there were less restrictive alternatives (e.g.,
INDIVIDUALIZED hearings). If Stanley is a fit father, the State spites its own articulated goals when
it needlessly separates him from his family. Common sense PP arguments are relevant to
constitutional law.
The Nature and Legitimacy of Modern SDP. 2 approaches to how a Court should decide what
fundamental rights are implicit:
Michael H. v. Gerald D. (1989): Michael H. (P) challenged Californias irrebuttable presumption
that a child burn into a family unit is the product of the husband. H: A state MAY create this
irrebuttable presumption! Plurality opinion (binding but less precedential weight)
REASONING (Scalia): CONSTRUES SDP AND SDP PRECEDENTS AS NARROWLY AS POSSIBLE
The Court does not accept that to exercise parental rights over a children born into another family
is a fundamental right sufficient to override a states conclusion that the integrity of the family
should be maintained.
o Literal/narrow/textualist construction. Supports reading liberty as narrow as possible.
To allow broader meaning would lead to unfettered discretion of judges.
o Guideposts: TRADITION & HISTORY. We refer to the most specific level at which a relevant
tradition protecting, or denying protection to, the asserted right can be identified. only
way to abstain judicial discretion.
o Describes interest specifically (i.e., the unitary family)
o EVERY SINGLE FACT ESSENTIAL TO CASE. FOCUS ON STATEMENTS IN CASE NOTING
PARTICULAR FACTS!
DISSENTING (Brennan): The Court seems to limit that which may be a fundamental right protected
in a substantive sense to certain TRADITIONAL liberties. As society evolves, nontraditional rights
may become fundamental.
o Does not yield textual argument to Scalia. The pluralityignores the good reasons for
limiting the role of tradition in interpreting the Constitutions deliberately capacious
language. J
o Natural father does not have to show traditional protection but has to show that
interest has been deemed important. Also describes the interest more generally
higher level of abstraction!
o Stresses that the problem of narrow view of fundamental rights is that the right would
ALREADY be protected by case law/stat. law and would render the DP Clause superfluous.
o STRESS UNDERLYING PRINCPLIES. GET BEYOND SPECIFIC FACTS!
*With four new Justices having recently joined the Court, increased potential for
additional doctrinal change!
Fundamental right to keep the family together
Moore v. City of East Cleveland, Ohio (1977): East Cleveland (P)s zoning ordinance prohibited the
cohabitation of nonfamily members, which included cousins and other members of the traditional
39

IV.

family. H: Court strikes down ordinance! The freedom of personal choice in matters of marriage
and family life is one of the liberties protected by the DP Clause of the 14th Amendment. Plurality
opinion (difficult issues)
REASONING (Powell): Most like Brennans unifying theme Michael H. SS, even without classic
terminology. Acknowledges the GHOST of Lochner, says it is appropriate for the Court to DEFER
but not to ABDICATE judicial power. PP Choices have to respect constitutional rights!
DISSENTING (Stewart): The Court should be extremely reluctant to breathe still further
substantive content into the DP Clause as to strike down legislation adopted by a State to promote
its welfare. Same critique of Lochner Era
Right of Parents to Control Upbringing of Children- first cases recognizing FAMILY AUTONOMY
Meyer v. Nebraska (1923): Meyer (D) was convicted under a Nebraska statute that made it a crime
to teach children any language other than English. Meyer challenged his conviction on Due
Process grounds. H: Statute violates due process guarantees of the 14th Amendment. First cases
to define the term liberty in DP Clause to protect basic aspects of family autonomy.
*Notable that the first S. Ct. cases recognizing family autonomy were decided during the Lochner
Era and expressly used substantive due process to protect this right! Along with Pierce (1925),
earliest 2 cases protecting PERSONAL rights were actually decided in this era.
FUNDAMENTAL right to rear children; non-parent visitation rights
Troxel v. Granville (2000): The Troxels (P) petitioned a Washington Superior Court for the right to
visit their grandchildren over the protest of the childrens mother (D). Parents defending SDP
rights. Superior court entered visitation decree, state S. Ct. struck down statute on its face. H:
Statute unconstitutional as applied in this case!!!! A parent has a fundamental right in the care,
custody, and control of his or her child.
REASONING (OConnor): Stresses LIMITED holding judicial restraint/constitutional avoidance/
narrowest ground necessary. Superior courts decision failed to provide any protection for
Granvilles fundamental constitutional right to make decisions regarding the rearing of her own
daughters. NO SPECIFIED STANDARD OF REVIEW probably to garner enough votes! Plurality
decision.
CONCURRING (Thomas): Complains about lack of level of scrutiny articulated!
DISSENTING (Stevens): The Court should not have accepted a case in which a state supreme court
merely required a state legislature to redraft a statute to comply with the federal Constitution.
DISSENTING (Scalia): This matter belongs in a legislative debate, not in the judicial process of
deciding cases under the Constitution. Reading this unenumerated right into the Constitution
improperly creates a judicially imposed, federalized body of family law.
DISSENTING (Kennedy): The courts judgment should be vacated, and the case should be
remanded to that court for further proceedings consistent with the appropriate federal
constitutional standard.

Reproductive Autonomy

The S.Ct. recognized three aspects of reproductive autonomy to be fundamental rights: the right
to procreate, the right to purchase and use contraceptives, and the right to abortion.
The Court has held that the right to procreate is a fundamental right and therefore govt imposed
involuntary sterilization must meet strict scrutiny. Initially, the Court rejected this position in Buck
v. Bell (1927).
Implicitly overruling Buck by recognizing a fundamental right to procreate STILL GOOD LAW
Skinner v. Oklahoma (1942): Skinner (D) was deemed to be a habitual criminal and was ordered
sterilized under a State statute. H: a statute that arbitrarily excludes a class from its purview
violates the EP Clause of the 14th Amendment where fundamental rights are involved.
REASONING (Douglas): We are dealing here with a FUNDAMENTAL RIGHT, the right to have
children and this right is closely scrutinized. While a state may treat classes unequally based on
experience, it may not arbitrarily discriminate. There must be a rational basis for the
40

classifications.
CONCURRING (Stone): The statute violates the Constitution, but the better theory resides in the
DP Clause. PROCEDURAL Due Process right to individualized hearing.
*EQUAL PROTECTION CLAUSE REVIEW MORE STRAINED THAN SUBSTANTIVE DUE PROCESS
REVIEW. Under SDP, govt is barred completely from adopting that kind of law. Under EP, if govt
chooses to do so, it must adopt in an even handed way!
Privacy right for married couples; right to purchase and use contraceptives
Griswold v. Connecticut (1965): Doctor (D) and layman (D) were prosecuted for advising married
persons on the means of preventing contraception. H: The right to marital privacy, although not
explicitly stated in the Bill of Rights, is a penumbra, formed by certain other explicit guarantees in
the First Amendment. As such, it is protected against state regulation that sweeps unnecessarily
broad.
REASONING (Douglas): Court starts off by saying they are NOT Lochnering! Not sitting as a superlegislature! Personal right so obligation to act. The present case concerns a relationship lying
within the overarching zone of privacy created by several fundamental constitutional guarantees.
And it concerns a law which, in forbidding the USE of contraceptives rather than regulating their
MANUFACTURE or SALE. Bends over backwards to avoid substantive DP!
CONCURRING (Goldberg): The Ninth Amendment suggests that the list of rights in the first 8
amendments is not exhaustive. This right is a fundamental one that cannot be infringed.
CONCURRING (Harlan): The court should have instead relied on the DP Clause in finding this law
violative of basic values implicit in the concept of ordered liberty. The tradition is a LIVING
THING and a RATIONAL CONTINUUM.
CONCURRING (White): DP Clause should be the test in determining whether such laws are
reasonably necessary for the effectuation of a substantial state interest.
DISSENTING (Black): While the law is OFFENSIVE, neither the 9th Amendment nor the DPC
invalidates it.
DISSENTING (Stewart): The proper way to invalidate the uncommonly silly statute is to return it
to the people of Connecticut to repeal it through the legislative process.
*Dissents raising Lochner debate about SDP. Although the theory of SDP has declined as a means
to review state economic regulation, the court, as here, freely applied STRICT SCRUTNY of state
laws affecting social areas. generally this case is thought of as correctly decided.
Reaffirming and Extending Griswold on EP Grounds
Eisenstadt v. Baird (1972): Massachusetts made it a crime to give contraceptives to an unmarried
person. D gave a contraceptive to a single person and was convicted under the Massachusetts
law. H: A state law that makes it a crime to give contraceptives to an unmarried person violates
the Equal Protection Clause.
REASONING (Brennan): If the right to privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted govt intrusion into matters so fundamental
affecting a person as the decision whether to bear or beget a child. decisional & spatial privacy!
DISSENTING (Burger): P was properly convicted for dispensing medicine without a license. Here,
limiting the class of DISTRIBUTORS of contraceptives will not impair the right affirmed in Griswold
to USE them.
Recognition and reaffirmation of the right to abortion surprisingly controversial
Roe v. Wade (1973): Roe (P), a single woman, wished to have her pregnancy terminated by an
abortion. H: The right of privacy found in the 14th Amendments concept of persona liberty and
restrictions upon state action is broad enough to encompass a womans decision whether or not to
terminate her pregnancy.
REASONING (Blackmun): At LEAST potential life. Court defines point of viability conceptually.
Subsequent to viability, the state, in promoting its interest in the potentiality of life, may regulate
and even proscribe abortion, except where necessary to save the mothers life. still governing
41

law! But focuses on the right of the PHYSICIAN.

DISSENTING (Rehnquist): The test to be applied is whether the abortion law has a rational relation
to a valid state objective. Law would be unconstitutional even under rational basis review!
*First post-Lochner substantive DP case that comes close to basing holding.
In 1989, in Webster v. Reproductive Health Services, 4 Justices seemed poised to overrule Roe.
C.J. Rehnquist attacked the trimester distinctions that were used by Roe to balance the rights of
the mother and the states interest in protecting the fetus.
TWO POINTS OF CONSENSUS re: Pregnant Womans SDP rights (every justice agreed!!)
o Laws restricting abortions must contain exceptions for abortions that are necessary to save
the pregnant womans life.
o Laws restricting abortions with the purpose and/or effect of preserving a pregnant
womans own health or life may well be constitutional; such laws raise distinct SDP issues
(in terms of the pregnant womans SDP rights) fro laws restricting abortions with the
purpose and/or effect of preserving fetal health/life.
The justices disagree about the SDP issues that raised by all other abortion laws:
o Laws that permit abortions that are NOT necessary to save the pregnant womans life
(laws that permit non-life saving abortions).
o Laws that restrict abortions with the purpose and/or effect of preserving fetal/health life
(pro-fetal restrictions).
FOUR POSSIBLE SDP RULINGS re: the two challenged type of abortion laws:
PRO-LIFE MOVEMENT
1) Laws that permit non-life saving abortions are
& Texas in Roe
unconstitutional and violate the SDP rights of the
fetus/pre-born baby; 2) Pro-fetal restrictions are
constitutional.
STATES RIGHTS
Each state (and the federal government) may
PROPONENTS
constitutionally enact either type of law. }
& Dissenters in Roe
*Scalia & Thomas against SDP!
S. CT in CASEY
1) Laws that permit non-life saving abortions are
constitutional; 2) Pro-fetal restrictions are A)
see below case
constitutional after fetal viability an B) constitutional
before fetal viability UNLESS the restriction constitutes an
undue burden.
PRO-CHOICE MOVEMENT
1) Laws that permit non-life saving abortions are
& S. CT in Roe
constitutional; 2) Pro-fetal restrictions are A)
constitutional after fetal viability but B) unconstitutional
before fetal viability (violating the pregnant womans SDP
rights).
PLAINTIFF
1) Laws that permit non-life-saving abortions are
And some amici in Roe
constitutional; 2) Pro-fetal restrictions are
unconstitutional (violating the pregnant womans SDP
rights). govt can only regulate when fetus leaves
womans body!
Upholding Roes central holding; the major case articulating current protections and constitutional
standards for the right to abortion. Clearly grounds holding on SDP with no reference to 9th
Amendment!
Planned Parenthood v. Casey (1992): Planned Parenthood (P) facially challenged the
constitutionality of PAs abortion law. H: A law is unconstitutional as an undue burden on a
womans right to an abortion before fetal viability, if the law places a substantial obstacle in the
path of a woman seeking to exercise her right. 5-4 vote
42

V.

REASONING (joint opinion): Directly looks at DP. Intermediate level of scrutiny much less
predictable result. At the heart of liberty is the right to define one sown concept of existence, of
meaning, of the universe, and of the mystery of human life. Also affirms Roe bc of stare decisis!
We are satisfied that the immediate question is not the soundness of Roes resolution of the issue,
but the precedential force that must be accorded to its holding. Also rejected the rigid trimester
framework.. .
RULE: To determine if Stare Decisis should be followed, we apply five factors:
a. Was the legal rule unworkable?
b. Whether changing the rule would cause serious inequity to people who rely on it?
c. Whether changing the legal rule causes significant damage to stability in society generally?
d. Whether the law has changed in the general area surround the precedent?
e. Whether there have been any pertinent factual changes?
NEW UNDUE BURDEN TEST: a finding of an undue burden is a shorthand for the conclusion that
a state regulation has the purpose or effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus. *OConnor/Kennedy/Souter. Unpredictability of
this set of justices! Judicial Independence
CONCURRING/DISSENTING (Blackmun): Wanted strict scrutiny. The trimester framework should
be maintained. He would have COMPLETELY AFFIRMED ROE.
CONCURRING/DISSENTING (Rehnquist): Says this is still a cutback on Roe, but he would have
COMPLETELY REVERSED!
CONCURRING/DISSENTING (Scalia): Wanted rational basis review. Would have COMPELTELY
REVERSED!
*Casey DID increase govts power to regulate/restrict abortion.
Gonzales v. Carhart (2007): Majority opinion which upheld ban on partial-birth abortion.
Consistently used the term unborn child vs. fetus. The first time they upheld an abortion
restriction that did not have an exception on the health of the woman. Majority indicated would
review Casey in future case. *based SDP on VERY NARROW GROUNDS. Even narrower than
Stenberg

Medical Decisions

2 major SDP cases: Cruzan and Glucksberg

Right to die?
Cruzan v. Director, Missouri Dept. of Health (1990): Missouri (D) required clear and convincing
evidence of prior consent by an individual prior to the cessation of life support systems operating
upon that individual. H: A Statute is constitutional. 5-4 decision
REASONING (Rehnquist): Does not reach fundamental right issue, finds that the states interest
involved is the lives of its citizens, which is a highly compelling interest. No level of scrutiny
articulated. Govt has Burden of proof.
CONCURRING (OConnor): A right to deny artificial life support should be clearly recognized.
CONCURRING (Scalia): As with abortion, the matters of this type should be left to the states for
decision.
DISSENTING (Brennan): An individual has a fundamental interest in avoiding unwanted medical
treatment. A clear and convincing evidentiary standard (demanding standard) is improper. 4
dissenters & OConnor all recognize a fundamental right!
*This case is important for what it DOES. The Court did not declare that a right to die DOES or
DOES NOT exist!
Right to physician-assisted suicide
Washington v. Glucksberg (1997): A group of Washington physicians (P) and a non-profit
organization (P) that counseled people considering physician-assisted suicide filed suit seeking a
declaration that the states assisted-suicide ban was facially unconstitutional. H: The right to
assistance in committing suicide is not a fundamental liberty interest protected by the Due Process
43

VI.

Clause. 9-0 decision

REASONING (Rehnquist): Does not say strict scrutiny is necessary because has not said a
fundamental right is at stake. Like Scalias narrow view of SDP.
*Four concurring justices left door open: they might be willing to strike down an as applied
challenge vs. a facial challenge re: pain.
Companion case to Glucksberg was Vacco v. Quill (1997), which involved a challenge by terminally
ill patients to New York law that prohibited aiding or abetting a suicide. The Court of Appeals
declared the law unconstitutional on EP grounds. The distinction between assisting suicide and
withdrawing life-sustaining treatment comports with fundamental legal principles of CAUSATION
and INTENT.

Sexual Activity

In Bowers v. Hardwick (1986), the S. Ct. held that the right to privacy does not protect a right to
engage in private consensual homosexual activity. In a 5-4 decision, the Court upheld a Georgia
law that prohibited oral-genital or anal-genital contact.
Culture of decisional autonomy OVERRULING Bowers. Most recent SDP case
Lawrence v. Texas (2003): Police officers saw Lawrence (D), a man, having anal sex with another
man inside an apartment. The two men were charged with, and convicted of, the Texas crime of
deviate sexual intercourse with a member of the same sex. H: A state cannot criminalize intimate
sexual conduct between two persons of the same sex consistent with the substantive protections
of the DPC of the 14th Amendment.
REASONING (Kennedy): BOLD & CAUTIOUS move! Never refers to Fundamental right and no
strict scrutiny, but overrules Bowers. Brennan (Michael H.) view of SDP uses language that
transcends facts of the case. Textual argument that the framers could have defined liberty more
specifically! Stresses PRIVATE SEXUAL CONDUCT (vs. homosexual conduct). endorsing an
expansive concept of SDP. The statutes do seek to control a personal relationship that, whether or
not entitled to formal recognition in the law, is within the liberty of persons to choose without
being punished as criminals. (READ: Marriage)
History and Tradition are the starting point but not in all cases the ending point of the substantive
due process inquiry. (See: Glucksberg)
CONCURRING (OConnor): Not deciding SDP issue. Better basis for this case is EP Bowers need
not be overruled. Moral disapproval alone is not a legitimate state interest. The Texas law targets
HOMOSEXUALITY, not merely homosexual conduct, which amounts to a bare desire to harm an
unpopular group rational basis with bite! Texas can outlaw sodomy for everyone or not at all.
DISSENTING (Scalia): We have held repeatedly that only fundamental rights qualify for this so
called heightened scrutiny protection. Glucksberg undermines Casey!!
DISSENTING (Thomas): Nothing in this Constitution protects a right to privacy within the liberty
interest that is secured by the DPC of the 14th Amendment.

Equal Protection
I.

Rational Basis Review

The 14th Amendment provides in part: No state shalldeny to any person within its jurisdiction
the equal protection of the laws. The promise of this provision went unrealized for almost a
century as the S. Ct. rarely found any state or local action to violate the EP Clause until the mid
1950s. J. Holmes called it the last resort of constitutional arguments.
Since Brown, the S. Ct has relied on the EP Clause as a key provision for combatting invidious
discrimination and for safeguarding fundamental rights.
There remains no provision in the Constitution that says a FEDERAL court cannot deny EP of its
laws. However, in Bolling v. Sharpe, the court held that EP applies to the federal govt through the
Due Process clause of the Fifth Amendment. The Court interpreted the 5th Amendment as
44

including an IMPLICIT requirement for equal protection. The S.Ct. has now expressly declared that
EP analysis in the 5th Amendment area is the same as that under the 14th Amendment.
Sometimes equal protection is used if the govt discriminates among people as to the exercise of a
fundamental right. See Skinner v. Oklahama
Framework for Equal Protection Analysis. All EP cases pose the same basic question: Is the
Govts classification justified by a sufficient purpose? What constitutes a sufficient justification
depends entirely on the type of discrimination.
1. What is the Classification?
o Where classification exists on the face of the law: the law in its very terms draws a
distinction among people based on a particular characteristic. E.g., law prohibiting
blacks from serving on juries.
o Where laws are facially neutral: but there is a discriminatory impact to the law or
discriminatory effects from its administration. E.g., law requiring that all police
officers be at least 510 and 150 pounds (mostly men)*
*If a law is facially neutral, demonstrating a RACE or GENDER classification requires
that there is a discriminatory purpose behind the law!
o There is no mandatory rule that if it meets the criteria, it will be considered a suspect
classification! No Absolute Test.
2. What is the Appropriate Level of Scrutiny?
o Strict Scrutiny discrimination based on race or national origin, and citizenship (noncitizens who are lawfully in US): 1) classifications re: self govt, democratic process; or
2) federal statue or executive order issued pursuant to plenary federal power over
immigration and/or foreign policy. POSSIBLY religion, see Griffin v. Illinois.
A law is upheld if it is proven necessary to achieve a compelling govt purpose.
o Intermediate scrutiny/heightened scrutiny discrimination based on gender and
against non-marital children (formerly illegitimate children). POSSIBLY undocumented
non-citizens or at least children concerning an important interest (education).
A law is upheld if it is substantially related to an important govt purpose.
Purpose does not need to be COMPELLING, just important. The means used
need to have a SUBSTANTIAL RELATIONSHIP to the end being sought. The
govt has burden or proof here! Demanding.
o Rational basis all laws not subject to strict/intermediate scrutiny are evaluated
under this test (age, mental or physical disability, sexual orientation, wealth).
Minimum level of scrutiny that all laws challenged under EP must meet. Also includes
SS alien exceptions.
A law is upheld if it is rationally related to a legitimate govt purpose. At the
least, the govt has a legitimate purpose if it advances a traditional police
purpose: protecting safety, public health, or public morals. Virtually any goal
that is not forbidden by the Constitution will be deemed sufficient to meet the
rational basis test. Challenger has burden of proof here, and the test is
enormously deferential to the govt and only rarely have laws been declared
unconstitutional under rational basis review.
o Rationale basis with BITE.
Focus more on PURPOSE is it the ACTUAL purpose? Not just a CONCEIVABLE
legitimate purpose!
More rigorous version of the rational basis test
See Romer v. Evans
o Several criteria are applied in determining the level of scrutiny:
The Court has emphasized that immutable characteristics warrant heightened
scrutiny unfair to penalize person for traits the person did not choose.
45

The Court considers the ability of the group to protect itself through the
political process. Eg., women and aliens are underrepresented
The history of discrimination is relevant.
The Courts judgment concerning the likelihood that the classification reflects
prejudice as opposed to a permissible govt purpose.
o Although the levels of scrutiny are firmly established, there are many who criticize
the rigid tiers of review. J. Thurgood Marshall and John Paul Stevens have argued for
a SLIDING SCALE of review much less predictability.
3. Does the Govt Action Meet the Level of Scrutiny?
o The Court Evaluates the laws ends.
Deemed compelling, important, or containing legitimate/actual purpose.
o The Court Evaluates the means.
UNDERINCLUSIVE: A law is underinclusive if it does not apply to individuals
who are similar to those to whom the law applies.
OVERINCLUSIVE: A law is overinclusive if it applies to those who need not be
included in order for the govt to achieve its purpose.
A law can be BOTH underinclusive and overinclusive.
Under/overinclusiveness are used by courts in evaluating the fit between the
govts means and its ends. A relatively close fit is required if strict scrutiny is
used must be NECESSARY; under intermediate scrutiny, a closer fit; less
under/overinclusiveness will be required than under rational basis test.
Rare case law struck down under Rational Basis Review - rational basis with BITE
Romer v. Evans (1996): A Colorado (D) constitutional amendment, Amendment 2, which struck
down local antidiscrimination laws based on sexual orientation, was challenged for being violative
of the EP Clause. H: Colorados Amendment 2 violates the EP Clause bc it singles out a class of
citizens, homosexuals, for disfavored legal status.
REASONING (Kennedy): By requiring that the classification bear a rational relationship to an
independent and legitimate end, we ensure that classifications are not drawn for the purpose of
disadvantaging the group burdened by the law. Amendment 2 is at once too narrow and too
broad. It identifies person by a single trait and then denies them protection across the board. SUCH
a mismatch here between asserted purpose and the law those were not the ACTUAL purposes.
Amendment 2 is explainable only by animus towards homosexuals.
DISSENTING (Scalia): Amendment 2 does not violate the EP Clause it merely provides that
homosexuals may not receive preferential treatment unless they first amend the constitution. The
goal of this amendment was NOT bare desire to harm, as the majority concludes, but rather a
legitimate interest.
Rational basis with BITE continued
City of Cleburne, Texas v. Cleburne Living Center, Inc. (1985): Cleburne Living Center (P)
contended that laws impacting the mentally retarded should given heightened constitutional
scrutiny. H: Laws impacting the mentally retarded are not to be given heightened scrutiny! Court
VERY reluctant to recognize new classes that trigger heightened/intermediate scrutiny (quasisuspect classes like gender). The court went on to hold that, even under rational basis review, the
ordinance failed to pass because it represented only an irrational prejudice against the mentally
retarded. Rational basis test with BITE potential liability and population increase are NOT
peculiar to buildings with retarded people! Would apply to ALL buildings.
Underinclusiveness under rational basis review!
Railway Express Agency, Inc. v. New York (1949): New York (P) had a regulation that prohibited
advertising on vehicles but allowed advertising on business vehicles so long as the vehicles are
engaged in their owners usual work and not used mainly for advertising. H: The EP Clause does
not require that a statute eradicate all evils of the same type or not at all.
46

II.

REASONING (Douglas): The fact that NYC does not eliminate all distractions from its streets is
immaterial. The govt may proceed one step at a time! - When RB review is used, even
substantial underinclusiveness is allowed.
CONCURRING (Jackson): The framers of the Constitution knew, and we should not forget today,
that there is no more effective practical guaranty against arbitrary and unreasonable govt than to
require the principles of law which officials would impose upon a minority must be imposed
generally. less underinclusive law would be less likely to be unjust.
*Underinclusive because it does not include ALL distractions. Overinclusive because it includes
tiny signs or invisible ads. both of these are not problems under RB review.
Overinclusiveness under rational basis review!
New York City Transit Authority v. Beazer (1979): The NYC Transit Authority had a policy of
excluding all methadone users from employment. Current and prospective TA employees who
were methadone users challenged the policy on the ground that it violated the EP Clause. H: Does
not violate EPC!
REASONING (Stevens): There is no bright line as to when a methadone user is totally rehabilitated.
Therefore, the policy is rational. We may assume that it is probably unwise for a large employer
like TA to rely on a general rule instead of individualized consideration of every job applicant. But
this is a legislative policy aimed at SAFETY and EFFICIENCY. Individual determination impossible!
DISSENTING (White): The TAs policy excludes from employment all successful methadone users:
those free from drug and alcohol use. Successful methadone maintenance is not a good predictor
of job performance. Given these facts, the policy is NOT rational and is arbitrary. Many other
groups are as likely as methadone users to have members that are employable!
What kind of harm is law trying to prevent? A properly tailored law would target ALL & ONLY harm
agents. Underinclusive laws raise concern that the govt enacted a law that targets a particularly
powerless group or exempts those with more political clout. Overinclusive laws are unfair to
those who are unnecessarily regulated and they risk burdening a politically powerless group which
would have been spared if they had enough clout to compel normal attention.

Race-based Classifications

Prior to the adoption of the 13th Amendment in 1865, slavery was constitutional. Prior to the
adoption of the 14th Amendment in 1868, there was no constitutional assurance of equal
protection and thus no limit on race protection. Several constitutional provisions expressly
protected aspects of the institution of slavery.
Dred Scott v. Sanford (1857): Dred Scott (P) claimed to have been freed from his slave status by his
travels to free states with his master, but Sanford (D) insisted Scott (P) could not bring a federal
court action pressing the point because former slaves and their descendants are not citizens.
H: Since they are not citizens in the sense in which that word is used in the Constitution,
Negroes who were slaves in this country, or who are descendants of such slaves, cannot bring suit
in federal court. These slaves are not even non-citizens, but considered PROPERTY. Cannot bring
suit because no DIVERSITY!
*The Dred Scott decision helped to precipitate the Civil War by striking down the Missouri
Compromise, which allowed territories below the line to decide whether to allow slavery when
admitted as states. Congress did not have POWER to enact statutes except to protect
slaveholders rights!
The Court has expressly declared that ALL racial classifications whether disadvantaging OR
helping minorities must meet strict scrutiny.
The first articulation of the SS requirement based on race/natl origin upholding a law under EP.
Legal analysis remains good law! Since Korematsu, no challenge based on ethnicity/race where
natl crisis is reason.
Korematsu v. United States (1944): Korematsu (D), an American citizen of Japanese ancestry, was
convicted of violating exclusion order No. 34, a WWII decree that ordered all persons of Japanese
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ancestry to leave the military area of the Western United States. Govt purported justification was
national security. H: Apprehension by the proper military authorities of the gravest imminent
danger to the public safety can justify the curtailment of the civil rights of a single racial group.
REASONING (Black): Citing assertion by military authorities no scrutiny. Court has consistently
deferred to military (even when not in times of war!) Cited ONE Piece of evidence
approximately 5000 American citizens of Japanese ancestry refused to swear unqualified
allegiance to the US) subsequent to exclusion!
DISSENTING (Murphy): The evidence does not support the assumption underlying the Order that
all persons of Japanese descent are potential enemies or are disloyal. Evidence that it was RACIST.
Moreover, there was no adequate reason for not treating Japanese Americans on an individual
basis (the way Germans and Italians were treated) through loyalty hearings and investigations
UNDERINCLUSIVE!
*Hamdi and Boumediene not nearly as deferential to executive branch! 120,000 Japanese
Americans put into internment camps. Case has received severe and growing criticism.
Proving the Existence of a Race or National Origin Classification:
1) Classification exists on the face of law text of law draws distinction.
2) If law is facially neutral, a race or natl origin classification might be proven by demonstrating
discriminatory administration or discriminatory impact S.Ct. has held that this also requires proof
of discriminatory PURPOSE.
Types of Racial Classifications:
1) Laws that expressly impose a burden or disadvantage on people because of race/natl origin.
2) Govt action that burdens both whites and minorities. E.g., anti-miscegenation laws
3) states requiring separation of the races. E.g, Jim Crow Laws created a system of apartheid in
which the govt mandated segregation in public accommodations, transportation, schools, and
almost everything else. (Didnt violate 14th Amendment because it does not apply to private
conduct!)
Key case in which S.Ct. considered/upheld laws requiring segregation of the races:
Plessy v. Ferguson (1896): Plessy (D) was arrested for trying to sit in a railroad car that was
designated for whites only. H: Segregation of the races is reasonable if based upon the
established custom, usage, and traditions of the people in the state.
REASONING (Brown): The state may segregate the races in separate but equal facilities or
accommodations. This is a valid exercise of the states police power.
DISSENTING (Harlan): Weighs AGAISNT govt acknowledge race, but would read language as antisegregation. Our constitution is colorblind, and neither knows nor tolerates classes among citizens.
The statute interferes with the personal freedom of individuals to freely associate with others.
2 contrasting strands: 1) must take account race to discount it; 2) colorblind trend only way to
stop discriminating on the basis of race is to stop discriminating on the basis of race, C.J. Roberts
OVERRULING Plessy on narrow ground. First time putting force on EPC in enforcing discrimination
issues!
Brown v. Board of Ed (1954): Black children were denied admission to public schools by white
children. H: Struck down separate but equal doctrine on basis of violating the Equal Protection
Clause.
REASONING (Warren): Separate educational facilities are inherently unequal. Education an
essential means to equal opportunities. A sense of inferiority affects childrens motivation to
learn.
Brown II delegated remedies to local school districts. Brown III (1992) as long as local govts
making good faith efforts to desegregate, even though the court is bowing out.
After the decision in Brown, the court found segregation unconstitutional in other public facilities
as well. Despite the emphasis on school context, later cases resulted in per curiam orders simply
citing Brown.
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III.

TYPES OF SEGREGATION Potential Application of Brown to other situations.

1) Racial segregation in public schools. Narrow reading of Brown
2) Racial segregation in other public institutions. Parks, buses, etc.
3) Other types of segregation in public schools. Based on gender, sexual orientation, religion
4) Other types of segregation in other public institutions. Gender-segregated public buses.
*Consider an even NARROWER reading of Brown doesnt apply to ALL racially segregated
schools! Adverse impact on AA children may not bar POSITIVE effect. E.g., Ujaama
Institute (1991) all AA male teachers and students!!

Facially Neutral Laws with a Discriminatory Impact

If a racial classification appears on the face of the law, then strict scrutiny is used. However, some
laws that are facially race neutral are administered in a manner that discriminates minorities or
has a disproportionate impact against them.
The requirement for proof of a discriminatory purpose:
Washington v. Davis (1976): A qualifying test for positions as police officers in D.C. was failed by a
disproportionately high number of black applicants. The applicants claimed that the test was
unlawfully discriminatory against them and in violation of the 5th Amendment Due Process Clause.
H: Shifts burden of proof to defendants! A law or official governmental practice must have a
discriminatory purpose, not merely a disproportionate effect on one race, in order to constitute
invidious discrimination under the Fifth Amendment Due Process Clause or the 14th Amendment
EP Clause.
PP: Ruling otherwise would raise serious questions and perhaps invalidate a whole range of tax,
welfare, public service, regulatory, and licensing statutes that may be more burdensome to the
poor and to the average black.
REASONING (White): A disproportionate impact may be relevant as evidence of a discriminatory
purpose, but is not the sole touchstone of invidious racial discrimination forbidden by the
constitution and standing alone, does not trigger strict scrutiny. Here, Test 21 is racially natural
on its face and designed to disqualify those who cannot meet the requirements of the police
training program. It is valid even though it has a disproportionate effect on blacks.
DISSENTING (Brennan): At a minimum, the police dept should have been required to prove that
Test 21 either measured job-related skills or predicted job performance.
What if you cant imagine ANY OTHER PURPOSE and there is discriminatory impact? Exceptional
case! Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the
effect of the state action even when the governing legislation appears neutral on its face.
overwhelming statistics can be circumstantial evidence.
Applying Washington v. Davis to reject EP challenges to facially neutral laws that have a racially
discriminatory impact
McCleskey v. Kemp (1987): McCleskey (D) contended he was denied equal protection when
sentenced to death because blacks were statistically more likely to be so sentenced, and such was
racially based. H: Raw abstract statistical data are NOT dispositive of a lack of equal protection!
REASONING (Powell): Each jury is unique, and only evidence specific to the case will help. Data
was properly excluded.
DISSENTING (Brennan): The statistical evidence is great that black defendants charged with killing
white victims in Georgia have a much greater chance of being sentenced to death. By failing to
heed this evidence, the majority is continuing injustice.
Whether discrimination can be proven by showing a discriminatory impact is crucial in determining
the reach of the EP Clause. Undoubtedly, there are many areas where a significant discriminatory
impact can be proven, but not sufficient evidence of a discriminatory purpose. Many laws with
both a discriminatory purpose and effect might be upheld simply because of evidentiary problems
inherent in requiring such proof.
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